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