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IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON ALBERTAACOSTA, an individual, Appellant,

PARC ENCHANTED PARKS, LLC, a Florida LLC, Respondent. No. 72146-1-1 (Consolidated with No. 72647-1-1) DIVISION ONE UNPUBLISHED OPINION FILED: September21, 2015 Leach, J. — The trial court dismissed Alberta Acosta's personal injury 

### complaint because she failed to accomplish service ofprocess within the statute of limitations period. The court later denied Acosta's motion seeking 

### postjudgmentrelief from the orderofdismissal. We affirm both rulings. FACTS 

### On July 18, 2013, the day before the statute of limitations expired on her claim, Alberta Acosta filed a personal injurycomplaint in King County Superior Court. Acosta named PARC Enchanted Parks LLC, a Florida-based limited 

### liability company, as the defendant. According to her complaint, Acosta sustained a back injuryat PARC's WildWaveswaterpark on July 19, 2010. On or about September 10, 2013, an employee of the Thurston County Sheriff's Officeattempted to serve a copy ofAcosta's summons and complaint atNo. 72146-1-1 (consol. with No. 72647-1-l)/2

the Tumwater, Washington, office of CorpDirect Agents Inc. CorpDirect personnel refused to accept service and informed the deputy sheriff that CorpDirectwas no longertheWashington registered agentfor PARC. 

### On January 22, 2014, PARC filed a notice of appearance. PARC next filed a motion to dismiss. PARC argued thatAcostafailed to serve the summons 

### and complaint within 90 days of filing the complaint as required by RCW 4.16.170. Thus, the statute oflimitations barred Acosta's claim. According to the declaration of Randall Drew, PARC's chief executive officer, the company 

### received a copy ofthe summons by regular mail at its Florida headquarters on 

### January 14, 2014. About a week later, Acosta served a copy ofthe summons and a complaint, signed on January 17, 2014, on National RegisteredAgents Inc. (NRAI)at its Olympia, Washington, office. 

### Acosta did not respond to the motion to dismiss. But her counsel 

### appeared at the hearing and requested an extension of time inorderto contact the office of the Washington Secretary of State to ascertain the identity of 

### PARC's registered agent on September 10, 2013, the date Acosta attempted to
serve the complaintatthe CorpDirectoffice. 

### In a declaration supporting the request, Acosta's counsel stated that he 

### contacted the secretary ofstate to obtain information about PARC's registered

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### agent. Counseldid notspecifywhen this contactoccurred.1 Upon learning that CorpDirect had not accepted service of the summons and complaint, counsel stated that he contacted the secretary ofstate's office again and obtained "new 

### registered agent information." According to counsel, he once again asked the Thurston County Sheriff's Office to serve the pleadings, but the "sheriff's officer 

### served a different entity than the one they [were] instructed to." Acosta supplied evidence ofthe return of service on CorpDirect on September 10, 2010, but no 

### evidenceto substantiatea second attempted service.2 The court reserved ruling on PARC's motion. The court allowed Acosta additional time to submitdocumentation, ifavailable, from the secretary ofstate's 

### office to show that CorpDirectwas the registered agent on September 10, 2013. The court's order indicated that the court would reset a hearing if Acosta 

### provided such proof, but otherwise the court would issue an order without a further hearing. 

### Acosta eventually obtained two corporate documents fromthe secretary of state's office and provided certifiedcopies to the court. The first document, an


### 1At the April 2014 hearing on the motion to dismiss, PARC's counsel informed the court thatAcosta's counsel representedto herthathe contactedthe 

### secretary of state within six months to a year after the 2010 accident. 2Acosta filed a declaration by Deputy SheriffMike Hazlettin support of her motion to vacate thatdescribed onlythe initial service attempt inSeptember 2013 and service atthe NRAI office inJanuary 2014. -3-No. 72146-1-1 (consol. with No. 72647-1-1)/4


### "initial report" PARC filed on May 1, 2013, listed the registered agent as CorpDirect at the Tumwateraddress. The second, an "annual report" PARCfiled inNovember 2013, listed the registered agent as NRAI at an Olympiaaddress. Based on these documents, Acosta argued that CorpDirect was the registered agent inSeptember2013, despite its refusal to acceptservice. 

### In reply, PARC provided documents indicating that NRAI in Olympia replaced CorpDirect as the registered agent inJanuary 2013.3 In addition to the form changing the registered agent, PARC submitted the declaration of Michelle 

### Rowe, corporate operations managerfor NRAI. Rowe testified that according to NRAI's business records, NRAI has been PARC's registered agent in Washington since January 2013. Rowe testified that after NRAI filed a "bulk Change ofRegistered Agent" form to change the registered agentfor PARC and
numerous other companies with the secretary of state in January 2013, she personally contacted the secretary of state to confirm its acceptance ofthe form. Rowe conceded that PARC's May 2013 initial report contained an error because it was "pre-filled" with CorpDirect's information. However, she verified that the secretary of state did not make any change in its records regarding PARC's



### 3The file stamp on this document indicates that itwas filed in January 2012, but the date of signature and other information in the record demonstrate that itwas filed inJanuary 2013. -4-No. 72146-1-1 (consol. with No. 72647-1-1)/5 

### registered agent based on the initial report and that since January 2013, the secretaryofstate has listed NRAI as the agent. On May 30, 2014, the courtdismissed the case. Acosta appeals fromthe entry ofthe orderofdismissal. Approximately two months later, Acosta's newly hired counsel filed a motion seeking relief from the order of dismissal under CR 60. In connection 

### with this motion, both parties filed additional documents, mostly about the information inthe secretary of state's database and records during the relevant time frame. Acosta's former counsel also submitted a declaration and police report documenting his involvement in a serious collision with a pedestrian shortly before the court issued the May 30, 2014, order. The court denied Acosta's motion. Acosta filed a notice of appeal of this decision. This court consolidated Acosta's appeals. SUFFICIENCY OF SERVICE OF PROCESS A plaintiffmustcommence a personal injury claimwithin three years ofthe 

### date of the alleged injury.4 In general, a party may commence a civil action either by service of process or by filing the complaint, "whichever occurs first."5 Under RCW 4.16.170, ifthe plaintiffcommences the action by filing a complaint,
4RCW 4.16.080(2). 5RCW4.16.170; CR 3. -5-No. 72146-1-1 (consol. with No. 72647-1-1)/6

he or she must serve one ormore ofthe named defendants within 90 days ofthe 

### filing in order to toll the statute of limitations.6 To serve process on a foreign corporation doing business in Washington, a party must deliver a copy of the


### summons to an agent or secretary ofthe corporation.7 While a plaintiff may also
serve a defendant out of state, there is no evidence that Acosta attempted to

serve PARC in Florida in accordance with RCW 4.28.180. PARC sought dismissal under CR 12(b)(2) (lack of personaljurisdiction), (4) (insufficiency of process), (5) (insufficient service of process), and CR 56. If the trial court considers materials outside the pleadings, as it did here, we review its decision underthe de novo standard ofreviewfor summaryjudgment, viewing 

### all factual inferences in favor ofthe plaintiff.8 We will affirm an order granting
6RCW4.16.170 provides:

Forthe purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing ofthe complaint, the plaintiffshall cause one or more ofthe defendants to be served personally, or commence service by publication within ninety days from the date offiling the complaint. Ifthe action is commenced by service on one or more ofthe defendants or by publication, the plaintiffshall file the summons and complaint within ninety days from the date of service. If following service, the complaint is not so filed, or followingfiling, service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations. 7RCW 4.28.080(10). 8 State v. AU Optronics Corp., 180 Wn. App. 903, 912, 328 P.3d 919 (2014). -6-No. 72146-1-1 (consol. with No. 72647-1-l)/7



### summaryjudgment ifthere is no genuine issue of material fact and the moving party isentitledtojudgmentas a matterof law.9 Acosta contends that the trial court erred in dismissing her complaint because the evidence before the court established that CorpDirect was PARC's 

### registered agent inWashington on the date she attempted service. Specifically, Acosta claims thatthe May2013 initial reportlistingCorpDirect, togetherwiththe November 2013 annual report identifying NRAI, prove that CorpDirect in Tumwater was PARC's registered agent between May 2013 and November
2013. But Acosta has never asserted that she was aware ofor relied on these or any other corporate documents when she attempted to serve PARC. Indeed, such a claim would be inconsistent with her counsel's testimony. According to her former counsel's declaration, he made two attempts to serve PARC in reliance upon information obtained from the secretary of state's office. Acosta provided no evidence aboutwhatthe secretary of state's records reflected atthe relevant time. And counsel tellingly omitted any information about when he contacted the secretary of state. He did not specify what new information he received after CorpDirect refused to accept service, what entity he then
9 Fulton v. Dep't of Soc. & Health Servs., 169 Wn. App. 137, 147, 279 P.3d 500 (2012); CR 56(c). -7-No. 72146-1-1 (consol. with No. 72647-1-l)/8

instructed the sheriff's office to serve, or when a second service attempt took place. The only evidence in the record about subsequent service is service at 

### the NRAI office in January 2014, several months after the statute of limitations expired. The argument that an error in PARC's May 2013 corporate filing created an ambiguity and required the court to hold an evidentiary hearing 

### ignores the testimony that counsel relied on the secretary of state's representation, not on PARC's corporate documents. Nor does the record include anything suggesting that the initialcorporate 

### report invalidated PARC's earlier action of changing its registered agent from CorpDirect to NRAI. Acosta claims thatthe "StatementofChange ofRegistered 

### Agent/Office" form filed with the secretary ofstate inJanuary 2013 was notvalid. She points out that the change of agent form is missing the new registered agent's signature inone section and that the form indicates an intent to change onlythe registered agent's office address. 

### But the parties agree that a representative ofNRAI signed the form in the 

### "authorized signature" section of the form. No authority orevidence establishes that the secretary ofstate did not give effect to the form because of a missing 

### signature in one section. Also, because the form clearlyidentifies CorpDirect in

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Tumwater as the current agent and NRAI inOlympia as the new agent, itcannot 

### reasonably be interpreted as a requestto change onlythe agent's officeaddress. Acosta also claims the trial court should not have considered Rowe's 

### testimony about what she learned after contacting the secretary ofstate's office and what the records reflected because itwas based on hearsay. But she did 

### not object below to the admissibilityof the evidence.10 Andevendisregarding the portions of Rowe's declaration that arguably contain hearsay, the admissible evidence before the court on summary judgment did not demonstrate that 

### CorpDirect inTumwater was PARC's registered agent on September 10, 2013,
orthatAcosta reasonably believed thatwas the case. 

### Alternatively,Acosta contends thateven ifNRAI was the registered agent, the court should have considered service on PARC atthe CorpDirect office to be sufficient because the two entities were essentially the same. Acosta bases this 

### argument on Rowe's admission in her 2014 declaration that at some pointinthe past, "NRAI has done business as . . .CorpDirect." Acosta also cites the fact that after receiving her complaint in January 2014, NRAI transmitted the 

### complaint to PARC using CorpDirect letterhead. But below, Acosta opposed
10 See Bonneville v. Pierce County, 148Wn. App. 500, 509, 202 P.3d 309 

### (2008); see also RAP 9.12 ("On review of an order granting ordenying a motion for summaryjudgmentthe appellate courtwill consideronlyevidence and issues called to the attention ofthe trial court."). -9-No. 72146-1-1 (consol. with No. 72647-1-l)/10



### PARC's motion only on the ground that CorpDirect was the registered agent in September 2013. The trial court had no opportunity to consider this argument. 

### We consider only '"issues called to the attention of the trial court'" when 

### "reviewing an order granting or denying summaryjudgment."11 In any event, evidence that NRAI did business inthe past as CorpDirect and its use of CorpDirect letterhead does not establish that the entities were 

### acting as one inSeptember2013. Evidence of a relationship between Corpdiect and NRAI does not alter the fact that in January 2013, NRAI, operating at an 

### Olympia address, became PARC's registered agent. 

### Finally, Acosta claims that the court was required to holdanother hearing
on the motion to dismiss. She further contends that she was prejudiced by entry 

### of the court's order without 5 days' notice of presentation because she was 

### deprived of the opportunity to argue that a new hearing was required.12 We disagree on both counts. The court held a hearing on PARC's motion. Nothing in the court's initial order reserving its ruling required a second hearing. The 

### court expressly retained discretion to enter the order without a further hearing based on its assessment of the record. As explained, because the evidence before the court did not establish that Acosta timely accomplished service on 

### 11 Bankston v. Pierce County, 174 Wn. App. 932, 941, 301 P.3d 495 (2013) (quoting RAP 9.12). 12 See CR 54(f)(2). -10-No. 72146-1-1 (consol. with No. 72647-1-l)/11
PARC, the court did not abuse its discretion in proceeding without another 

### hearing.13
MOTION TO VACATE 

### Acosta next challenges the trial court's denial of her CR 60(b) motion to 

### vacate the May2014 orderofdismissal. She asserts thatthe court should have 

### granted her motionbased on "multipleprocedural irregularities" and "unavoidable 

### casualtyormisfortune" in obtaining the order.14 The decision to grant or deny a motion to vacate a judgment under CR 

### 60(b) iswithinthetrial court's discretion.15 Therefore, wereviewCR 60(b) orders for an abuse of discretion.16 A trial court abuses its discretion if its decision is 

### based on untenable grounds or reasons.17 Unlike an appeal, a CR 60(b) motion is not a mechanism for correcting errors oflaw.18 We therefore review only the



### 13 In moving to dismiss, PARC asserted that not only was Acosta's claim barred by the statute of limitations, the summons misstated the defendant's 

### response time. Because of our conclusion that Acosta failed to accomplish effective service, we need notaddress the issue ofdefective process. 14 See CR 60(b)(1), (9). 15 Jones v. City ofSeattle, 179Wn.2d 322, 360, 314 P.3d 380 (2013). 16 Tamosaitis v. Bechtel Nat'l. Inc., 182 Wn. App. 241, 254, 327 P.3d 1309, reviewdenied, 181 Wn.2d 1029 (2014). 17 Tamosaitis, 182Wn. App. at254. 18 Burlinqame v. Consol. Mines &Smelting Co., 106Wn.2d 328, 336, 722 P.2d67(1986). -11-No. 72146-1-1 (consol. with No. 72647-1-l)/12

trial court's decision to deny the motion to vacate—not the underlying orderthat 

### Acosta soughtto vacate.19 CR 60(b)(1) allows the trial court to vacate ajudgmentdue to "[mjistakes, inadvertence, surprise, excusable neglect, or irregularity in obtaining a 

### judgment." An irregularity is an action that does not follow a prescribed rule or mode ofproceeding, including the failure to take an action that is necessary for the due and orderly conduct of a lawsuit or taking a necessary action in an improper manner.20 Under CR 60(b)(9), a court may relieve a party orthe party's 

### legal representative from a finaljudgment, order, or proceeding if the court finds "[unavoidable casualty or misfortune prevented] the party from prosecuting or defending." 

### Acostadid notidentifyany irregularity in obtaining the order. The failure to hold a second hearing was not a procedural irregularity. Again, nothing in the 

### court's prior order or in CR 56 required the court to hold this hearing. Acosta's 

### argument that the court decided against a further hearing based onflawed legal 

### analysis issimply a challenge to thevalidity of the underlying order and beyond the scope ofreview ofthe denial of a motionto vacate.



### 19 See Biurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).20 Little v. King, 160Wn.2d 696, 722-23, 161 P.3d 345 (2007). -12-No. 72146-1-1 (consol. with No. 72647-1-l)/13



### Acosta's attorney's involvement in a serious collision might amount to an unavoidable casualty or misfortune withinthe meaning of CR 60(b)(9). But she 

### made no showing that the incident actually prevented her from prosecuting her
case or defending against PARC's motion. Acosta had ample opportunity to provide evidence and to defend against PARC's motion. Before the accident, she had, in fact, already been granted an extension, then submitted evidence 

### and filed a brief in support of her position. Acosta claims that the May 23 accident prevented her counsel from challenging PARC's evidence in reply, advocating for a hearing, or moving for reconsideration. We cannot infer this from the limited information in the record. And even ifwe assume that butfor the accident, Acosta would have provided the evidence she later supplied insupport of her motion to vacate at an earlier point, the supplemental evidence did not establish that CorpDirect was the active registered agent on the date of 

### attempted service.21


### 21 Insupport of her motion, Acosta submitted the declaration of a deputy sheriffof the Thurston County Sheriff's Office and a cover sheet submitted with the change of agent form. She also submitted the declaration of Patrick Reed, operations manager for the Division of Corporations and Charities in the Washington Secretary of State's Office, who confirmed that the May 2013 initial report listing CorpDirect as the agent is included in PARC's public file. In response, PARC submitted another declaration of Reed, stating that "as of January 25, 2013, the Division's database was updated to indicate that the Registered Agentfor PARC was [NRAI] atthe Olympia address. No subsequent change ofregistered agentform was filed with the Division afterJanuary 2013." -13-No. 72146-1-1 (consol. with No. 72647-1-l)/14

In sum, the evidence before the trial court demonstrated that Acosta did not accomplish service of process within 90 days of filing her complaint. Therefore, the courtproperlydismissedAcosta's claim as barred bythe statute of limitations. The court also properly exercised its discretion in denying Acosta's
motion to vacate. Affirmed.

WE CONCUR: 

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