                                                        5^
                                     ZL16N0V-'




IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SHANTA STEGER,
                                                        No. 75647-8-1
              Appellant/Cross Respondent,
                                                        DIVISION ONE
              v.
                                                        UNPUBLISHED OPINION
JANICE TURNER,

              Respondent/Cross Appellant,

 DONALD LUCE,

                     Defendant.                         FILED: November 7, 2016


      Appelwick, J. — This case involves the nature of strict compliance with

RCW 46.64.040's requirements for substituted service. Steger signed and served

the required declaration of compliance with the substituted service statute, but it

was not dated. The trial court dismissed the suit for lack of effective service. On

these facts, Steger's substantial compliance with the declaration statute did not

result in a failure of strict compliance with the substituted service statute. We

reverse and remand for trial.
No. 75647-8-1/2




                                      FACTS


       Shanta Steger and Janice Turner were involved in a car accident on July

20, 2012. On July 14, 2015, Steger filed a complaint for damages and personal

injuries against Turner.1

       Between July 18, 2015 and August 9, 2015, Steger attempted to serve

Turner a total of 10 times. None of these attempts was successful. Steger resorted

to substituted service under RCW 46.64.040.          She sent the summons and

complaint to the secretary of state. Steger also sent the summons, complaint,

notice of service on the secretary of state, declaration of compliance, and affidavit

of due diligence to Turner by certified mail, return receipt requested. Turner's

husband signed the return receipt on August 26, 2015.

       On November 6, 2015, Turner moved for summary judgment. She alleged

that the case should be dismissed, because the statute of limitations expired

before the case was commenced. She asserted this was so, because Steger failed

to properly serve her.

       The trial court granted summaryjudgment on the basis that Steger failed to

properly execute and serve the affidavit of compliance. Steger's declaration of
compliance was not dated. The court concluded that without the date, the

declaration did not qualify as a sworn statement. And, without the affidavit of




       1On August 14, 2015, Steger amended the complaint to add Donald Luce
as a defendant. Luce is not a party on appeal.
No. 75647-8-1/3




compliance, Steger had failed to serve Turner, so her suit was not commenced

within the statute of limitations. Steger appeals.2

                                    DISCUSSION


        Steger asserts that the trial court erred in dismissing her complaint for lack

of proper service. She urges us to adopt a practical solution rather than dismiss

the case on a technicality.

        For a court to obtain jurisdiction over a party, there must be proper service

of the summons and complaint. Heinziq v. Hwang, 189 Wn. App. 304, 310, 354

P.3d 943 (2015), review denied. 184 Wn.2d 1036, 379 P.3d 952 (2016). We review

de novo whether service of process was proper. Id.

        Washington's    nonresident    motorist act,     RCW 46.64.040,        permits

substituted service on the Washington secretary of state when the person to be

served does not reside in or cannot be found within Washington. It provides, in

part,
        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 plaintiffto the defendant at the
        last known address of the said defendant, and the plaintiffs affidavit

        2 Turner filed a cross appeal due to the trial court's denial of her other
theories to support summary judgment.
No. 75647-8-1/4


       of compliance herewith are appended to the process, together with
       the affidavit of the plaintiffs 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 plaintiffs
       attorney need only show that the defendant received personal
       delivery by mail.

Id.


       RCW 46.64.040 specifies the procedure that must be followed when serving

the secretary of state. The plaintiff must either personally serve the defendant with

the summons and notice of service on the secretary of state, or send the

documents by registered mail to the defendant's last known address, with return

receipt requested. Heinzig. 189 Wn. App. at 312. The plaintiff must also attach

the plaintiff's signed affidavit of compliance and the plaintiff's attorney's affidavit of

due diligence that certifies attempts were made to serve the defendant personally.

id,

       Washington courts have determined that strict procedural compliance with

RCW 46.64.040 is necessary. Heinzig. 189 Wn. App. at 311; Keithlv v. Sanders.

170 Wn. App. 683, 687-88, 285 P.3d 225 (2012). If the plaintiff fails to adhere to

the statute's procedures for notifying the defendant that process has been served

on the secretary of state, service is rendered a nullity. Heinzig. 189 Wn. App. at

312; see Omaits v. Raber. 56 Wn. App. 668, 670, 785 P.2d 462 (1990).

       Here, Steger complied with RCW 46.64.040.              She first made due and

diligent attempts to personally serve Turner. Process servers attempted to serve

Turner at the address listed in the accident report on 10 separate occasions. At
No. 75647-8-1/5




times varying from 8:21 a.m. to 6:27 p.m., they knocked on the door, but received

no response. While Turner argues that 10 attempts at service were insufficient,

we disagree. Due diligence under RCW 46.64.040 means that the plaintiff must

make honest and reasonable efforts to locate the defendant. Martin v. Triol. 121

Wn.2d 135, 150, 847 P.2d 471 (1993). We conclude that Steger's attempts to

serve Turner met this threshold.


       After these unsuccessful attempts at personal service, Steger followed

RCW 46.64.040's steps for substituted service on the secretary of state.3 She sent

the summons, complaint, and notice of service on the secretary of state to Turner's

last known address by certified mail, return receipt requested. She included her

declaration of compliance.     She also included her attorney's affidavit of due

diligence.

       Thus, we must decide whether a declaration that is not in strict compliance

with the declaration statute, RCW 9A.72.085, strictly complies with RCW

46.64.040.   Under RCW 9A.72.085(1), an unsworn statement such as the one

Steger provided can be used in place of a sworn statement if certain requirements



       3 Turner argues that under Clay v. Portik, 84 Wn. App. 553, 929 P.2d 1132
(1997), Steger was also required to file an affidavit of compliance and an affidavit
of due diligence with the court. She argues that Steger's failure to do so constitutes
an independent basis for dismissal.

       This court stated in Clay that a plaintiff must file an affidavit of compliance
and an affidavit of due diligence with the court to perfect service of process under
RCW 46.64.040. 84 Wn. App. at 559. But, we have since held that the statute
does not require a plaintiff to file an affidavit of compliance with the court. James
v. McMurrv. 195 Wn. App. 144, 154, 380 P.3d 591 (2016). We apply the language
of the statute and conclude that Steger was not required to file an affidavit of
compliance or affidavit of due diligence with the trial court.
No. 75647-8-1/6




are met. The unsworn statement must: (1) state that it is certified or declared to

be true under penalty of perjury, (2) be subscribed by the person, (3) state the date

and place of execution, and (4) state that it is certified or declared under the laws

of the state of Washington. Id.

       Turner alleges that Steger's signed statement of compliance fails to meet

these requirements, because it is not dated. But, Turner does not challenge the

substance of the declaration. She does not contend that the facts related to mailing

are false. And, she admits that she received the summons, complaint, notice of

service on the secretary of state, declaration, and affidavit of due diligence. There

is no question that she received the documents before the statute of limitations

expired, as her husband signed the return receipt for these documents on August

26, 2015. Steger signed the declaration and certified under penalty of perjury that

its contents were true. And, the declaration was included in the documents that

Steger mailed to Turneron August 18, 2015. Therefore, the declaration must have

been executed on or about August 18, 2015, the mailing date. With these facts in

mind, the lack of a date on the declaration is not a failure to follow the procedure

of RCW 46.64.040.

       We have previously held that substantial compliance with RCW 9A.72.085

may be adequate. See Johnson v. King County. 148Wn. App. 220, 225, 229, 230,

198 P.3d 546 (2009) (holding that strict compliance with the requirements for

unsworn statements is not a condition precedent to complying with the claim filing

statute); Maniusv. Boyd. 111 Wn. App. 764, 766, 780,47 P.3d 145 (2002) (holding

there was sufficient proof of service by mail of a postarbitration request for a trial
No. 75647-8-1/7




de novo, where the certificate of service did not include the place of signing). The

failure to comply with RCW 9A.72.085—the absence of the date of signing—would

not render the penalty of perjury provision of the declaration statute ineffectual on

these facts. Accordingly, the signed declaration substantially complied with the

declaration statute.


       We conclude that Steger's technical defect in the declaration does not result

in a service defect under RCW 46.64.040.        Therefore, the trial court erred in

dismissing Steger's suit due to insufficient service of process.

       We reverse and remand for trial.




WE CONCUR:




   I^Okey fl 6>J
