Heinzig v. Seok Hwang

• Decision Date: 29 June 2015
• Docket Number: No. 72269–7–I.,72269–7–I.
• Citation: 354 P.3d 943,189 Wash.App. 304
• Court: Washington Court of Appeals
• Parties: Mark HEINZIG and Jane Doe Heinzig, and their marital community, Appellants, v. SEOK HWANG and Jane/John Doe Hwang, and their marital community, Respondents.

189 Wash.App. 304

354 P.3d 943

Mark HEINZIG and Jane Doe Heinzig, and their marital community, Appellants

v.SEOK HWANG and Jane/John Doe Hwang, and their marital community, Respondents.

No. 72269–7–I.

Court of Appeals of Washington, Division 1.

June 29, 2015.

Publication Ordered Aug. 10, 2015.

Robert Wrixton Warren, Warren Law Office, Edmonds, WA, Gary Manca, Manca Law, PLLC, Seattle, WA, for Appellants.

Bret S. Simmons, Jill Smith, Roy Simmons, Smith & Parsons PS, Bellingham, WA, for Respondents.

Opinion

DWYER, J.

¶ 1 Following a motor vehicle collision with Seok Hwang, Mark Heinzig commenced a lawsuit against Hwang and, subsequently, sought to accomplish substituted service of process pursuant to Washington's nonresident motorist act, RCW 46.64.040. Heinzig failed, though, to strictly comply with the procedural requirements contained in RCW 46.64.040 before the applicable statutory limitation period expired. Thus, when Hwang later brought a motion to dismiss, alleging insufficient service of process, the trial court properly granted the motion and dismissed Heinzig's complaint. Finding no error in the trial court proceedings, we affirm.

I

¶ 2 On June 5, 2010, Heinzig was involved in a motor vehicle collision with Hwang. The collision occurred in Lynwood, Washington.

¶ 3 On May 13, 2013, Heinzig initiated a lawsuit against Hwang in Snohomish County Superior Court. In the complaint, Heinzig alleged that he had suffered injury as a result of Hwang's negligence in operating a motor vehicle. Upon filing of the complaint, the three-year statutory limitation period was tolled for 90 days, so long as valid service of process was effected on Hwang within the 90–day period. RCW 4.16.170.¹

¶ 4 On May 14, copies of the summons and complaint were provided to a professional process service company, North Sound Due Process, LLC. Registered process server Debra Gorecki made three unsuccessful attempts to effect service upon Hwang. Thereafter, Gorecki prepared and signed a “Declaration of Diligence,” in which she detailed her attempts to serve Hwang.

¶ 5 On May 17, a staff member of Heinzig's attorney's office sent an e-mail to Hwang's attorney, attached to which were copies of the summons and complaint. The e-mail included the following statement: “As requested, here is the complaint for Mark Heinzig.” Hwang's attorney replied, “Got it. Thanks.” Later that day, the same staff member sent another e-mail to Hwang's attorney, which stated, “attached is the filed copy.” Hwang's attorney replied, “Thanks.”

¶ 6 On May 22, Hwang's attorney filed a notice of appearance.

¶ 7 On June 4, Heinzig's attorney mailed two copies of the summons and complaint to the Washington secretary of state. Included in this mailing was a letter written by Heinzig's attorney, wherein he informed the secretary of state of the fruitless attempts to serve Hwang in Washington and provided Hwang's last known address. Also included in the mailing was Gorecki's “Declaration of Diligence.” All of this was done in an attempt to effect service of process on Hwang pursuant to RCW 46.64.040.

¶ 8 A staff member of the secretary of state's office, in a letter to Heinzig's attorney, confirmed that Heinzig's mailing had been received on June 7. The staff member informed Heinzig that a copy of the received documents had been mailed to Hwang's last known address on June 10.² The mailing sent from the secretary of state to Hwang's last known address was returned as undeliverable.

¶ 9 On January 30, 2014, Hwang filed a CR 12(b) motion to dismiss the complaint. Therein, Hwang asserted that he had never been personally served, that Heinzig had failed to accomplish substituted service pursuant to RCW 46.64.040, and that the applicable statute of limitation had run. With regard to Heinzig's attempt to effect substituted service, Hwang contended that Heinzig had failed to adhere to two statutory requirements:

(1) sending notice by registered mail to Hwang of service upon the secretary of state, and (2) attaching to that mailing an affidavit of due diligence signed by his attorney and certifying that attempts had been made to serve Hwang personally.

¶ 10 In an April 3 memorandum decision, the trial court ruled in Hwang's favor. The court ruled that Heinzig's failure to send a “letter with summons and complaint” to Hwang by registered mail rendered Heinzig's attempt at effecting substitute service ineffective. In so ruling, the court declined to hold that Hwang had waived the defense of insufficient service of process. The court's reasons for doing so are set forth in some detail below.

(3) The agreed facts, as a matter of law, cannot support a finding of waiver for the following reasons:

a. The statute of limitations ran on August 11, 2013, and assuming the Secretary of State sent the letter on June 10, even if service had been proper, defendant's answer would not have been due for 60 days plus potentially 3 days for mailing. Even if defendant answered timely at the end of 60 days and asserted improper service, there would have been insufficient time to remedy the service defect.

b. The defendant did not answer or conduct discovery or file other pleadings and fail[ed] to raise insufficiency of process.

No other pleadings have been filed and no discovery conducted.

c. There is no evidence presented that defendant or defense counsel conducted negotiations or participated in other actions to lead plaintiff to believe the case was headed toward trial and litigation.

d. There is no evidence that defense counsel knew or had any facts or way to know of the particular defect in service before the statute of limitations ran. As the information sent to defense counsel showing service by the Secretary of State would have shown the letter from the Secretary of State and any letter from defense counsel went to a bad address, the defense could not have known the failure of the defendant to receive a registered letter from the defense counsel meant no such letter was sent. The defense reasonably could assume the letter was simply returned to the plaintiff as undeliverable.

e. The mere passage of time before bringing the action to dismiss after the statute of limitations [h]as run is not necessarily enough to constitute waiver. Compare, Harvey v. Obermeit, [163 Wash.App. 311, 261 P.3d 671 (2011) ] supra. (Waiver was not found, although defendant did not advise plaintiff of service of process issue in the 90 day service period before statute of limitations ran and did not file motion to dismiss until 6.5 months after the lawsuit was filed.)

¶ 11 On July 3, the court entered an order granting Hwang's motion to dismiss on the basis that service of process had not been accomplished before expiration of the applicable statutory limitation period.

¶ 12 Heinzig appeals.

II

¶ 13 Heinzig contends that the trial court erred in holding that his attempt to accomplish substituted service pursuant to RCW 46.64.040 was ineffective. Contrary to the court's conclusion, he maintains that he “sufficiently complied” with the statute's procedural requirements. Only strict compliance, however, could permit jurisdiction to be obtained over Hwang. Thus, appellate relief is unwarranted.

¶ 14 “Proper service of the summons and complaint is a prerequisite to a court's obtaining jurisdiction over a party.” Harvey v. Obermeit, 163 Wash.App. 311, 318, 261 P.3d 671 (2011). Whether service of process was proper is a question of law that this court reviews de novo. Goettemoeller v. Twist, 161 Wash.App. 103, 107, 253 P.3d 405 (2011).

¶ 15 As noted, 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 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 plaintiff to 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

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