(dissenting) — The majority purports to apply the common law doctrine of waiver, but instead creates a rule where waiver of the defense of insufficient service of process will be found in virtually every case. The majority states that the defense of insufficient service of process is waived in situations where a process server’s affidavit is filed (imputing knowledge to the defendant of the effectiveness of service), and phone calls and interrogatories have been exchanged before the defense is raised. This is not the standard applied by the cases the majority relies on and, if applied to future cases, will be the harshest standard of common law waiver in the country.
Under the doctrine as it is generally defined, a defense of insufficient service of process may be waived by dilatory conduct or conduct inconsistent with assertions of the *46defense. Raymond v. Fleming, 24 Wn. App. 112, 114-15, 600 P.2d 614 (1979). However, in examining both Washington cases and cases from other jurisdictions, it becomes apparent that purposeful or misleading conduct is required before courts will find a waiver. Indeed, the case law strongly supports the conclusion that not only must the defendant’s conduct be dilatory or inconsistent with assertions of the defense, the circumstances also must establish that the defendant actually knew of the defense and remained silent or engaged in conduct which misled the plaintiff.
In Washington, for example, in the case upon which the majority chiefly relies, the party claiming the defense had actual knowledge that plaintiff was relying on proper service and intentionally misled the opposing party as to the effectiveness of the service. Romjue v. Fairchild, 60 Wn. App. 278, 282, 803 P.2d 57 (1991). Additionally, cases from other jurisdictions in which the common law doctrine has been applied involve conduct which ranges from intentionally misleading conduct spanning several years prior to the defendant’s answer to postanswer conduct clearly illustrating an “[ijntentional relinquishment or abandonment of a known right or privilege” because of actual knowledge of improper service. Tuckman v. Aerosonic Corp., 394 A.2d 226, 229 (Del. Ch. 1978) (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357 (1938)); see also Marcial Ucin, SA. v. S.S. Galicia, 723 F.2d 994 (1st Cir. 1983); Joyner v. Schiess, 236 Ga. App. 316, 512 S.E.2d 62 (1999) (postanswer conduct of engaging in discovery and continuances not enough to illustrate intentional relinquishment of defense). None of the cases relied on by the majority impute actual knowledge of ineffective service to the defendants based on the process server’s affidavit.
The majority’s guidelines leave the doctrine of common law waiver of the affirmative defense with no meaning at all since the majority fails to distinguish between circumstances which exist in nearly every case — the process server’s affidavit, phone conversations, and exchanged in*47terrogatories — and conduct exhibiting actual knowledge of deficient service or conduct intended to mislead. The majority’s analysis also improperly and unfairly shifts the burden of proper service to the defendant where, as here, the defendant made attempts to reserve the defense, and the facts do not show either actual knowledge of improper service or effort on the defendant’s part to mislead the plaintiff. Therefore, I respectfully dissent.
In French v. Gabriel, 116 Wn.2d 584, 806 P.2d 1234 (1991), this court addressed the viability of the common law doctrine of waiver of the defense of insufficient service of process and distinguished between conduct that did not waive the defense and conduct that did. To illustrate the type of conduct required to find waiver, the French court pointed to the conduct in Raymond, 24 Wn. App. at 115. French, 116 Wn.2d at 592-93. In Raymond, the plaintiff improperly served the defendant. Raymond, 24 Wn. App. at 114. After filing a notice of appearance, the defendant repeatedly asked for more time in response to plaintiffs repeated requests for an answer to the complaint. Id. at 114. Almost eight months after defendant’s first notice of appearance, the plaintiff in Raymond moved for an order of default or, in the alternative, an order compelling answers to interrogatories. Id. Thereafter, the defendant obtained two continuances past the expiration date for proper service of process. Id. This dilatory and clearly inconsistent conduct, coupled with plaintiffs attempts to compel action, constituted sufficient grounds to conclude that the defendant there had waived his affirmative defense of insufficient service of process. Id. at 115.
After comparing the conduct in Raymond with the conduct of the defendant before it, the French court declined to find a waiver. Although the plaintiff made repeated requests, the defendant did not ask for more time for an answer or more time to obtain court continuances. French, 116 Wn.2d at 593. This court agreed with the Court of Appeals that “ ‘[wjhile not to be condoned, a mere delay in filing an answer does not constitute a waiver of an insuffi*48cient service defense.’ ” Id. at 593-94 (citing French v. Gabriel, 57 Wn. App. 217, 222, 788 P.2d 569 (1990)).
The majority relies on Romjue, 60 Wn. App. 278, to support its application of the waiver doctrine. In Romjue, the plaintiff improperly served the defendant’s mother. Romjue, 60 Wn. App. at 280. Approximately one month after the defendant’s attorney filed a notice of appearance, and after the defendant’s attorney had received the process server’s affidavit, the plaintiff’s attorney sent a letter which stated in part, “it is my understanding that the defendants have been served in the above matter [Romjue v. Fairchild].” 60 Wn. App. at 281 (emphasis omitted). The defendant’s attorney did not respond to the letter and later asserted the defense of insufficient service of process after the statute of limitations had expired. Id. at 282. Based on the receipt of the letter, the court concluded that the defendant had actual knowledge that the plaintiff believed service was proper and that the defendant “reli[ed] upon the defective service, yet he chose to say nothing until after the statute of limitation had expired.” Id.
Although the court in Romjue noted that the parties had exchanged interrogatories and defense counsel had the process server’s affidavit, the deciding factor for the court was the plaintiffs letter to the defendants, sent before the statute of limitations had run, stating that the plaintiff believed service was proper. Based on the defendant’s receipt of this letter, the court concluded that the defendant had actual knowledge of the improper service and his failure to respond to the letter misled the plaintiff. Id. at 281-82. Thus, as in Raymond, the Romjue court did not rely upon the existence of a process server’s affidavit or the fact that the parties had conversed but instead relied on other conduct clearly indicating defendant’s knowledge or intention to mislead.
In the present case, we have neither the facts of Raymond nor the facts of Romjue. Unlike Romjue, nothing here indicates the defendant in this case actually knew service was improper and relied upon defective service, misleading *49the plaintiffs by choosing to say nothing until the statute of limitations expired and, unlike Raymond, there is no purposefully misleading conduct in the form of court continuances. The only conduct here, filing of a process server’s affidavit, phone conversations, and exchanges of interrogatories, does not indicate knowledge nor is the plaintiffs conduct inconsistent with assertion of the defense. Consistent with Romjue, this court should not find that the mere exchange of interrogatories, communications between the parties, and the process server’s affidavit are sufficient for waiver. Rather, as in Romjue, this court should require a showing that the defendant actually knew that plaintiffs were relying on effective service. Romjue, 60 Wn. App. at 282.
Unfortunately, the majority here places undue emphasis on the process server’s affidavit, reasoning that the defendant either knew or should have known that the plaintiffs were relying on valid service because of the process server’s affidavit. However, the plaintiffs in every case anticipate that service is effective. By holding that the process server’s affidavit is enough to impute to a defendant actual knowledge of improper service so that the defendant must assist the plaintiff to remedy the mistake, the court has effectively alleviated the plaintiffs duty to make effective service in the first place. Under this rule, the common law doctrine of waiver has no meaning because waiver will be found in every case where an affidavit exists and the defendant does not inform the plaintiff that service was defective.
Moreover, Grant County filed a notice of appearance expressly reserving the right to assert the defense of insufficient service of process. The majority cites Adkinson v. Digby, Inc., 99 Wn.2d 206, 660 P.2d 756 (1983), and dismisses this fact by asserting that since mere appearance by a defendant does not preclude the defense of insufficient service, then a notice of appearance reserving the defense should not serve as a vehicle to preserve the defense. Adkinson involved a defendant, who upon learning that the plaintiff intended to effect service, filed a notice of appear*50anee prior to service specifically stating that the defendant appeared “without waiving objections to proper service . . . Adkinson, 99 Wn.2d at 207-08. Actual service on the defendant was not made until after the statute of limitations had passed, and the defendant then asserted the defense of insufficient service of process. Id. This court held that the defendant could argue insufficient service because CR 4(d)(5) provided that “[a] voluntary appearance of a defendant does not preclude his right to challenge . .. insufficiency of process . . . .” Id. at 209. Adkinson merely clarified CR 4(d)(5) and did not suggest that appearance by the defendant cannot serve to reserve the defense of insufficient service of process. Here, the notice of appearance, along with the nonexistence of misleading conduct, illustrates the County’s clear intention to assert the defense, not a clear intention to waive it. Moreover, the Lybberts’ attorney was on notice that the defendants would assert the defense.
The majority contends, though, that the actions of the Lybberts are not at issue in determining whether Grant County waived the defense of insufficient service. The decision in French is to the contrary. There, this court found it significant in French that the plaintiff never complained about the lateness of the defendant’s answer. In fact, this court stated, “once [the defendant] was late in filing his answer, French could have moved for a default judgment pursuant to CR 55(a). He chose not to.” French, 116 Wn.2d at 593. Thus, the actions of the nonwaiving party have been significant in the only previous case in which this court addressed the issue of waiver of the defense of insufficient service.
The Lybberts could have moved for a default judgment. They chose not to. The Lybberts’ attorney also chose not to bring a motion to compel discovery under CR 37(a) nor a request for admission of proper service under CR 36, and did not confirm in writing or phone conversations with the County that effective service had been accomplished. Instead, two months after sending their interrogatories, the *51Lybberts’ attorneys merely requested in writing that Clark County send responses to interrogatories “at your earliest convenience.” Clerk’s Papers (CP) at 57 and 63.10 Effecting proper service and determining whether service is proper is the duty of the attorney filing the claim, not the attorney defending the claim.
Because the facts do not indicate that Grant County intended to mislead the Lybberts regarding the sufficiency of process, it is of little import that Grant County contacted the Lybberts’ attorney to discuss other unrelated matters. The majority states that the relevant facts are not in dispute, but both parties contest the number and content of the communications between them. It is clear, however, that Grant County received the Lybberts’ interrogatories six months after the complaint was filed and a detective working for Grant County called the Lybberts’ attorney to clarify the content of the questions. An attorney for Grant County may have also briefly mentioned state-sponsored mediation during one phone conversation. However, these facts do not show that the plaintiffs at any time informed the defendant that they were relying on proper service. None of the facts supports a conclusion that the attorneys for Grant County intended to mislead the Lybberts and wait for the statute of limitations to expire. An affidavit, phone conversations, and exchanged interrogatories are simply not enough to show common law waiver of the defense of insufficient service of process.
*52The majority correctly asserts that the doctrine of common law waiver of the affirmative defense of insufficient service of process is well established in courts throughout our country. While that is true, after examining the cases the majority offers to support this contention, I find that the doctrine of waiver is not applied with such severity as the majority applies it here.
Some jurisdictions have applied the common law doctrine of waiver in situations where the defendants’ misleading conduct spans several years. For example, defense counsel in Marcial Ucin, 723 F.2d 994, filed a notice of appearance, engaged in 13 depositions over a period of four years, and only then moved for an entry of default against the plaintiff for failure to properly serve the defendant. Id. at 997. The court held that the defendants waived the defense because their prejudgment conduct was clearly inconsistent with the later assertion of the defense. Id. Similarly, while the court in Kearns stated that Fed. R. Civ. P. 12(h) “[did] not preclude waiver by implication [,]” the Kearns court held that the defendants had waived the defense because they had repeatedly stipulated to extensions of time to answer the complaint over a period of four years and filed these stipulations with the court, but at no time actually reserved the right to contest the sufficiency of process. Kearns v. Ferrari, 752 F. Supp. 749, 751 (E.D. Mich. 1990) (citing Marquest Med. Prods., Inc. v. EMDE Corp., 496 F. Supp. 1242, 1245 n.1 (D. Colo. 1980)).
Other jurisdictions have applied the waiver doctrine only where the defense failed to raise the defense prior to judgment. In Trustees of Central Laborers’ Welfare Fund v. Lowery, 924 F.2d 731 (7th Cir. 1991), the court held that the defendants waived the defense of insufficient service of process after failing to assert it either prior to default judgment or after postjudgment proceedings spanning nearly six years. Id. The Trustees court stated that the six years of postjudgment conduct “led both the court and the plaintiffs to believe that a valid judgment had been obtained against them.” Id. at 733.
*53The facts of the lower appellate decisions of Burton v. Northern Dutchess Hospital, 106 F.R.D. 477 (S.D.N.Y. 1985), and Tuckman v. Aerosonic Corp., 394 A.2d 226 (Del. Ch. 1978), are also dissimilar to the facts of this case. In Burton, the defendants seasonably preserved the defense of insufficient service, but then waived the defense by failing to make a motion to dismiss the complaint during the succeeding three and one-half years of extensive discovery, requests for continuances, and transfer of the case from Connecticut to New York. Burton, 106 F.R.D. at 481. In Tuckman, a year after filing a notice of appearance, the defendant learned that a recent United States Supreme Court decision had held that parts of the Delaware service statute were unconstitutional. Tuckman, 394 A.2d at 227 (citing Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683 (1977)). The court emphasized that waiver of a known right in a civil case must involve a “knowing and voluntary waiver.” Tuckman, 394 A.2d at 229 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357 (1938)). The defendant subsequently waived the defense by continuing to engage in discovery and failing to assert the defense, or show reason for delay, after the defendant had actual knowledge of the implications of the Shaffer decision. Tuckman, 394 A.2d at 232-33.
In Joyner v. Schiess, 236 Ga. App. 316, 512 S.E.2d 62 (1999), the defendant had asserted the defense of insufficient service in both his answer and responses to interrogatories seven months after the complaint. Id., 512 S.E.2d at 63. The court stated that “[a]fter a party has properly raised such a defense, it will only be found waived if the party later engages in conduct so manifestly indicative of an intention to relinquish a known right or benefit that no other reasonable explanation of its conduct is possible.” Id. (quoting Heis v. Young, 226 Ga. App. 739, 740, 487 S.E.2d 403 (1997)). The Joyner court held that the defendant’s conduct in engaging in discovery after asserting the defense did not manifest a clear intent to relinquish the defense. Id. at 64 (distinguishing Tate v. Leres, 59 Ga. App. 6, 200 S.E. 325 (1938) *54(defendant waived the defense by failing to assert the defense and allowing the case to proceed to trial)). Significantly, while Georgia requires a manifest intent to relinquish the defense so that no other reasonable explanation is possible, the Joyner court also dismissed as hearsay evidence plaintiff counsel’s affidavit that asserted defense counsel expressly stated they did not intend to pursue the insufficiency of service defense. Id. at 64.
None of the cases cited by the majority has applied common law doctrine of waiver to the limited conduct at issue here — prejudgment conduct involving a notice of appearance, limited communications between the parties, and an assertion of the defense in the first court pleading 10 months after the complaint was filed. To the contrary, waiver has been applied in other jurisdictions only to purposeful and misleading conduct or postanswer actual knowledge of improper service. As these cases illustrate, the doctrine of common law waiver in other jurisdictions is not as harsh or broad as the rule the majority proposes today.
Finally, the majority states that its decision is consistent with the traditional duties litigators owe their adversaries and is consistent with the duties expressed in Washington State Physicians Insurance Exchange & Ass’n v. Fisons Corp., 122 Wn.2d 299, 858 P.2d 1054 (1993). The Fisons decision was limited to persistent, misleading, and egregious action which prevented the plaintiffs from obtaining information solely in the hands of the defendants. That is not this case. Moreover, unlike the plaintiffs in Fisons who had no control over the defendants violation of the discovery rules, the plaintiffs in this case could have easily discovered their own service of process mistake by looking to the applicable service of process statute, RCW 4.28.080(1), and existing case law. See Nitardy v. Snohomish County, 105 Wn.2d 133, 712 P.2d 296 (1986) (holding that substantial compliance with the provisions of RCW 4.28.080(1) is no defense to improper service of process, the service must exactly comply with the statute’s *55provisions). In fact, CR 4(d) outlines the proper process for service and specifically refers to RCW 4.28.080.11
In sum, unlike Raymond, Grant County did not ask for additional time to answer the complaint or interrogatories, and unlike Romjue, did not receive a letter from the Lybberts which directly expressed their reliance on proper service. The County expressly reserved the right in its notice of appearance to argue the claim. At no point during limited communications between the parties did Grant County ever express an intent to waive the defense of insufficient service or attempt to mislead the Lybberts. Grant County’s actions simply do not constitute inconsistent conduct illustrating relinquishment of the right to assert the defense of insufficient process. Therefore, I dissent.
Guy, C.J., concurs with Madsen, J.
Talmadge, J., concurs in the result.
Although CR 33 requires answers to interrogatories within 30 days, the rules also provide that this period can be extended or modified by written stipulation of the parties. It seems reasonable that where the defendants allowed the plaintiffs more time to fully answer interrogatories and understood from the plaintiffs’ written communication that they also had additional time to answer interrogatories, such failure to answer should not reflect negatively upon the defendants. In fact, after the Lybberts requested answers to the interrogatories “as soon as possible” (June 10, 1996), Grant County sent the answers. Clerk’s Papers at 60, 63. See, e.g., CR 33(a) — “The party upon whom the interrogatories have been served shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories ....” A shorter or longer time may be directed by the court or, in the absence of such an order, agreed to in writing by the parties subject to CR 29. Unless the court orders otherwise, the parties may by written stipulation, “modify the procedures provided by these rules for other methods of discovery.” CR 29(2).
CR 4(d) service — “(1) Of Summons and Complaint. The summons and complaint shall be served together.
“(2) Personal in State. Personal service of summons and other process shall be as provided in RCW 4.28.080-.090 ... and other statutes which provide for personal service.”