      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON                                     o
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CYNTHIA LARSON, and her husband,                                               3E
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                                               PUBLISHED OPINION
KYUNGSIK YOON, and his wife, JANE
DOE YOON, and the marital community
composed thereof,

             Petitioners.                      FILED: May 4, 2015


      Dwyer, J. — We granted discretionary review to decide the question of

whether jurisdiction over a Korean resident could be obtained through use of the

methods of service of process allowed for in Washington's nonresident motorist

act, RCW 46.64.040. We answer in the negative.



      On June 22, 2010, Keith and Cynthia Larson were involved in a motor

vehicle collision with Kyungsik Yoon. The collision occurred in King County,

Washington, which was where the Larsons resided. Yoon, on the other hand,

was a resident of the Republic of Korea.
No. 71561-5-1/2



      On June 10, 2013, the Larsons filed a complaint against Yoon in King

County Superior Court. Therein, they alleged claims of negligence and loss of

consortium. The complaint was filed less than two weeks before the statutory

limitation period was set to expire. Upon filing of the complaint, however, the

limitation period was tolled for 90 days, so long as valid service of process was

effected on Yoon within the 90-day period. RCW 4.16.170.1

       On June 14, the Larsons served copies of the summons, complaint, and

other documents on the Washington secretary of state. The secretary of state

then mailed copies ofthese documents to Yoon at an address in Korea. All of
this was done in an attempt to effect service of process on Yoon pursuant to

RCW 46.64.040.

       Attorneys hired by Yoon's insurer appeared on his behalf. On November
20, Yoon moved for summary judgment. He asserted that he had not been
validly served prior to the expiration of the applicable statutory limitation period.
This was so, he argued, because the methods ofservice allowed for in RCW
46.64.040 were inconsistent with the Hague Convention on the Service Abroad

ofJudicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15,
1965, T.I.A.S. No. 6638, 20 U.S.T. 361 (hereinafter Hague Convention) and,
consequently, that RCW 46.64.040 was preempted by virtue ofthe supremacy

       1This provision provides, in part, for the following:
       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. If service has not been had on the defendant priorto the filing of the
       complaint, the plaintiff shall cause one or more of the defendants to be served
           within ninety days from the date offiling 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.
No. 71561-5-1/3



clause of the United States Constitution, U.S. Const, art. VI.2

        On December 27, Yoon's summary judgment motion was denied. His

subsequent motion for reconsideration was also denied.

        Yoon sought discretionary review in this court. On May 19, 2014, an order

granting discretionary review pursuant to RAP 2.3(b)(1)3 was entered by a

commissioner of this court.

                                                  II


        The methods of service allowed for in RCW 46.64.040 are, as Yoon

asserts, inconsistent with the Hague Convention, as adopted by the Republic of

Korea. Consequently, RCW 46.64.040 is preempted by virtue of the supremacy

clause, and substituted service pursuant to the statute is ineffective as matter of

law. Because of this, and because the applicable statutory limitation period had

expired at the time that Yoon moved for summary judgment, we hold that the trial

court erred in ruling on Yoon's motion.4


        2 The supremacy clause provides for the following:
                This Constitution, and the laws of the United States which shall be made
        in pursuance thereof; and all treaties made, or which shall be made, under the
        authority of the United States, shall be the supreme law of the land; and the
        judges in every state shall be bound thereby, any thing in the Constitution or laws
        of any state to the contrary notwithstanding.
        3       (b) Considerations Governing Acceptance of Review. Except as
        provided in section (d), discretionary review may be accepted only in the
        following circumstances:
                 (1) The superior court has committed an obvious error which would
       render further proceedings useless.
RAP 2.3(b)(1).
        4 The Larsons contend that Yoon waived the defense of insufficient service of process.
This is so, they assert, because he did not raise the defense in good faith. However, because
this is not the issue that motivated our grant of discretionary review, we choose not to reach it.
Johnson v. Recreational Equip.. Inc.. 159 Wn. App. 939, 959 n.7, 247 P.3d 18 (2011); City of
Bothell v. Barnhart. 156 Wn. App. 531, 538 n.2, 234 P.3d 264 (2010) (the appellate court
determines the scope of discretionary review), affd, 172 Wn.2d 223, 257 P.3d 648 (2011). Given
that it is not clear that the superior court ever ruled on this issue, it may be raised on remand.
No. 71561-5-1/4



       "A trial court's denial of summary judgment is reviewed de novo, with the

appellate court engaging in the same inquiry as the trial court." Macias v.

Saberhagen Holdings. Inc.. 175 Wn.2d 402, 407, 282 P.3d 1069 (2012).

"Summary judgment is appropriate ifthe pleadings, affidavits, depositions,

answers to interrogatories, and admissions on file show that there is no genuine

issue of material fact and that the moving party is entitled to judgment as a

matter of law." Keithlv v. Sanders. 170 Wn. App. 683, 686, 285 P.3d 225 (2012)

(citing CR 56(c)).

       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
       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 if served 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

                                        -4-
No. 71561-5-1/5



      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
      plaintiffto 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,
      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 compliance with the

requirements of RCW 46.64.040 will permit personal jurisdiction to be obtained
over a nonresident. Martin v. Meier, 111 Wn.2d 471, 479, 760 P.2d 925 (1988);

see also Omaits v. Raber, 56 Wn. App. 668, 670, 785 P.2d 462 (1990)
No. 71561-5-1/6



("Substantial compliance, however, is not enough. . . . RCW 46.64.040 must be

strictly adhered to or no jurisdiction is obtained under the statute.") Strict

compliance with the statute means that "both service of the secretary of state and

mailing of notice of such service forthwith to the defendant must be

accomplished, in addition to the other statutory requirements." Keithlv, 170 Wn.

App. at 693 (emphasis added). In other words, service of the summons on the

secretary of state is not itself sufficient to constitute strict compliance with the

statute and does not, by itself, obtain jurisdiction over the person of the

nonresident motorist. Keithlv, 170 Wn. App. at 692-93; Omaits. 56 Wn. App. at

669-70.

       Nevertheless, we need not, and therefore do not, consider whether the

Larsons did, in fact, strictly comply with RCW 46.64.040. Instead, assuming,

without deciding, that strict compliance was achieved, we consider whether the

methods of service allowed for in RCW 46.64.040 are inconsistent with the

Hague Convention, as adopted by the Republic of Korea. This inquiry is of

consequence because state law methods of service that are inconsistent with the

Hague Convention are preempted by virtue of the supremacy clause. Broad v.

Mannesmann Anlagenbau. A.G., 141 Wn.2d 670, 674-75, 10 P.3d 371 (2000)

(citing Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 699, 108 S.

Ct. 2104, 100 L. Ed. 2d 722 (1988)).

       Article 1 of the Hague Convention provides that it applies in all cases

"'where there is occasion to transmit a judicial or extrajudicial document for

service abroad.'" Broad, 141 Wn.2d at 675 (quoting Hague Convention, art. 1).

                                          -6-
No. 71561-5-1/7



"Service of process refers to a formal delivery of documents that is legally

sufficient to charge the defendant with notice of a pending action."

Volkswagenwerk, 486 U.S. at 700. Article 2 directs each nation-state to

designate a "central authority" to receive requests for service of process. Broad,

141 Wn.2d at 674. Article 4 "specifies that 'the Central Authority of the State

addressed shall itself serve the document or shall arrange to have it served by an

appropriate agency ... by a method prescribed by its internal law for the service

of documents in domestic actions upon persons who are within its territory.'" Kim

v. Lakeside Adult Family Home.       Wn. App. _, 345 P.3d 850, 854 (2015)

(alteration in original) (quoting Hague Convention, art. 5(a)). However, "the

Hague Convention 'allows service to be effected without utilizing the Central

Authority as long as the nation receiving service has not objected to the method

used.'" Kim, 345 P.3d at 854 (quoting DeJames v. Magnificence Carriers. Inc.,

654 F.2d 280, 288 (3d Cir. 1981)).

       The Republic of Korea is a signatory to the Hague Convention and has

objected to certain methods of service otherwise authorized by the treaty. Of
significance to the question before us is the Republic of Korea's objection to the

methods of service set forth in Article 10 of the Hague Convention.

               2. Pursuant to Article 10, the Republic of Korea objects to
       the following:
              a) the freedom to send judicial documents, by postal
       channels, directly to persons abroad,
              b) the freedom of judicial officers, officials or other
       competent persons of the State of origin to effect service of judicial
       documents directly through the judicial officials or other competent
       persons of the State of destination.
             c) the freedom of any person interested in a judicial
No. 71561-5-1/8



       proceeding to effect service of judicial documents directly through
       the judicial officials or other competent persons of the State of
       destination.

Reservations of Republic of Korea to Hague Convention on the Service Abroad

of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 2121

U.N.T.S. 294, 296-97.5

       As a consequence of the Republic of Korea's objection to Article 10, both

the Larsons and the secretary of state were prohibited from serving Yoon directly

in Korea using postal channels. Yet, in order to strictly comply with RCW

46.64.040, notice of the summons served on the secretary of state would have to

be mailed directly to Yoon, either by the Larsons or the secretary of state.6

These methods of service are inconsistent with the Hague Convention, as

adopted by the Republic of Korea, and are, by virtue of the supremacy clause,

prohibited.

       Our conclusion is consistent with the applicable civil rule governing

"Alternative Provisions for Service in a Foreign Country."

       Manner. When a statute or rule authorizes service upon a party not
       an inhabitant of or found within the state, and service is to be
       effected upon the party in a foreign country, it is also sufficient if
       service of the summons and complaint is made: (A) in the manner
        prescribed by the law of the foreign country for service in that
        country in an action in any of its courts of general jurisdiction; or (B)
        as directed by the foreign authority in response to a letter rogatory
        or a letter of request; or (C) upon an individual, by delivery to him
        personally, and upon a corporation or partnership or association, by
        delivery to an officer, a managing or general agent; or (D) by any
        form of mail, requiring a signed receipt, to be addressed and mailed

        5 Available at https://treaties.un.org/doc/Publication/UNTSA/olume%202121/v2121.pdf
       6Sending such direct notice would be necessary, but not sufficient, to achieve strict
compliance with the statute. All other statutory requirements would still have to be met.

                                              -8-
No. 71561-5-1/9



      to the party to be served; or (E) pursuant to the means and terms of
      any applicable treaty or convention; or (F) by diplomatic or consular
      officers when authorized by the United States Department of State;
      or (G) as directed by order of the court. . . . The method for service
      of process in a foreign country must comply with applicable treaties,
      if any, and must be reasonably calculated, under all the
      circumstances, to give actual notice.

CR 4(i)(1) (emphasis added).

      As explained herein, the methods for service allowed for in RCW

46.64.040 do not comply with an applicable treaty—the Hague Convention, as

adopted by the Republic of Korea. Moreover, to the extent that the Larsons

maintain that service was complete upon the secretary of state receiving the

summons—an argument rejected in both Keithlv and Omaits—the Larsons

overlook the requirement imposed by rule that service be reasonably calculated

to give actual notice to the defendant. Merely serving the secretary of state,

without further complying with the statute's requirements of forwarding notice to

Yoon of the secretary of state's receipt of the summons, is not behavior

"reasonably calculated, under all the circumstances, to give actual notice." CR

4(i)(1). It is, of course, for this very reason that RCW 46.64.040 requires more

than mere service on the secretary of state for service to be complete. Martin,

111 Wn.2d at 479; Keithlv, 170 Wn. App. at 692-93; Omaits. 56 Wn. App. at 669-

70.

       In view of the foregoing, we hold, as a matter of law, that service of

process could not have been lawfully effected on Yoon in Korea pursuant to

RCW 46.64.040. To the extent that the trial court's order denying Yoon's motion

for summary judgment was based on its conclusion that proper service was had,

                                        -9-
No. 71561-5-1/10



the order is reversed. The cause is remanded for further proceedings.7

       Reversed.




                                                       ^^-^yv

We concur:




       7Yoon's request for an award of costs on appeal is denied. Wilson Court Ltd. P'ship v.
Tonv Maroni's. Inc.. 134 Wn.2d 692, 710 n.4, 952 P.2d 590 (1998).

                                            -10-
