Brandon Welch v. City Of Burlington

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. ) ) ) ) ) ) ) ) Defendant, ) ) ) ) ) ) ) ) l 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