Welch v. Boardman
| Decision Date | 22 October 2018 |
| Docket Number | No. 76771-2-I,76771-2-I |
| Court | Washington Court of Appeals |
| Parties | BRANDON WELCH, a single man, Respondent, v. ROGER R. BOARDMAN, a single man, Defendant, and CITY OF BURLINGTON, a municipal corporation, Petitioner. |
UNPUBLISHED OPINION
SMITH, J. — The city of Burlington (City) seeks discretionary review of the trial court's order denying its motion for summary judgment and holding that the City was properly served. Because Brandon Welch did not serve the mayor, the city clerk, or the mayor's designated agent for acceptance of service, as required by RCW 4.28.080(2), the trial court erred in denying the City's motion for summary judgment. On appeal, Welch presents several alternative legal theories of personal jurisdiction on which we can affirm the trial court's order denying summary judgment, including the discovery rule, waiver and estoppel, and the tolling of the statute of limitations. But, Welch is not able to establish 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 collided with Roger Boardman's car in an intersection in the city of Burlington. In September 2013, Welch sued Boardman for negligence. In November 2013, the trial court granted partial summary judgment against Boardman on the issue of liability.
According to a declaration filed by Welch's attorney, in July or August 2015, the attorney e-mailed both an amended complaint and a proposed agreed order to amend the complaint to Boardman's attorney. The amended complaint alleged that the City negligently designed and maintained the intersection where the accident occurred. Boardman's attorney mailed the proposed order with his signature to Welch's attorney and Welch's attorney then secured an order from the court allowing the amended complaint to be filed. The 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, "Plaintiff has failed to properly serve the Summons and Complaint upon Defendant City as required by the laws of the State of Washington and therefore the court has no jurisdiction over the City." Clerk's Papers at 80.
On January 18, 2017, the City moved for summary judgment, arguing that Welch failed to properly serve the mayor or the city clerk, as required by statute, within the statute of limitations. On January 24, 2017, Welch served the mayorwith the summons and amended complaint at his home address. Welch served the city clerk with the summons and amended complaint on February 1, 2017.
In opposition to the City's motion for summary judgment, Welch argued that summary judgment was not proper for several reasons. First, he argued that the statute of limitations 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 April 2014, when he learned 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 "complaints" under Burlington Municipal Code (BMC) 2.08.030. Fourth, he argued that the City was estopped from asserting insufficiency of service because the city administrator accepted service in this case and previous cases without objection. Finally, he argued that the City waived any objection to service of 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." Id. at 491. The court also held that "there [was] no waiver or estoppel arising from the City's actions in such prior cases, as the City alleged insufficiency of service in its answer in this matter." Id. The trial court denied the City's motion for reconsideration. It then certified the issue of sufficient service of process as reviewable under RAP 2.3(b)(4). We granted discretionary review.
ANALYSIS
Mayor's Designated Agent for Service of Summons
The City argues that the trial 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. We 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 law reviewed de novo. Seattle Hous. Auth. v. City of Seattle, 3 Wn. App. 2d 532, 538, 416 P.3d 1280 (2018) (citing Sleasman v. City of Lacey, 159 Wn.2d 639, 642-43, 151 P.3d 990 (2007)). "'The same rules of statutory construction apply to the interpretation of municipal ordinances as to the interpretation of state statutes.'" Id. (quoting City of Seattle 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 legislature's intent. Manary v. Anderson, 176 Wn.2d 342, 350-51, 292 P.3d 96 (2013) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P.3d 4 (2002)). "Statutory interpretation begins with a statute's plain meaning." Id. at 352. The plain meaning "is to be discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole." State v. Engel, 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 County, 183 Wn.2d 863, 881, 357 P.3d 45 (2015) (citing HomeStreet, Inc. v. Dep't of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009)). In determiningthe plain meaning of a statute, the court "must not add words where the legislature has chosen not to include them." Rest. Dev., Inc. v. Cananwill, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003). If the statute is unambiguous, the court's inquiry is at an end. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d 201 (2007).
RCW 4.28.080 provides the method for serving an incorporated city:
"When a statute designates a particular person or officer upon whom service of process is to be made in an action against a municipality, no other person or officer may be substituted." Meadowdale Neigh. Comm. v. City of Edmonds, 27 Wn. App. 261, 264, 616 P.2d 1257 (1980) (citing 56 AM. JUR. 2D Municipal Corporations, Counties, and Other Political Subdivisions § 854 (1971); 64 C.J.S. Municipal Corporations § 2205(c)(3) (1950)).
The City does not have a city manager, so under this statute, a party must serve either the mayor or, during normal office hours, the mayor's designated agent or the city clerk. The mayor testified that he had "not delegated the authority to receive service of process on behalf of the City of Burlington to any City official not specified in RCW 4.28.080(2)."1 Clerk's Papers at 121-22. Here,Welch 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 BMC 2.08.030, which states:
(Emphasis added.) The trial court interpreted the term "complaints" in section C above to include a complaint in the legal sense:
Under the handling of complaints I would think that a complaint is a complaint. And that the city administrator handles complaints. And he can be the guy you hand the complaint to. And when you do you've served the City of Burlington.
Report of Proceedings (Feb. 16, 2017) at 26.
Here, there are no genuine issues of material fact. The issue is legal: whether BMC 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.
BMC 2.08.030 does not include any reference to "service," "summons," or "designated agent"—the key terms in RCW 4.28.080(2). The only term that it includes is "complaints," which is not used in RCW 4.28.080(2). "Complaint" is not defined in Title 2 of the BMC. But BMC 1.04.030 explains how words in the code should be interpreted:
All words or phrases shall be construed according to the common and approved usage of the language, but technical words and phrases and such others as may have acquired a peculiar and appropriate meaning in the law shall be construed and understood according to such peculiar and appropriate meaning.
"Complaint" can have a technical meaning within the law, and its dictionary definition includes that meaning:
1 aobs : a cry or loud utterance or series of utterances of pain, rage, or sorrow : grieved or sorrowful outcry b : a formerly popular poem that laments or protests unrequited love or tells of personal misfortune, misery, or injustice c : the act or action of expressing protest, censure, or resentment : expression of injustice . . . d :formal allegation or charge against a party made or presented to the appropriate court or officer (as for a wrong done or a crime committed) and variously applied (as to the initial bill in...
To continue reading
Request your trial