IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

KIM RENETTE, a single person

Respondent,

v.

BRIANNA COATES, and TYLER 

COATES and the marital community 

therein; T&E TRUCKING, LLC;

NATIONWIDE AGRIBUSINESS 

INSURANCE COMPANY; CODY 

LOPEMAN and KASSIDY LOPEMAN, 

and the marital community therein; 

LOPEMAN HAY & CATTLE, LLC; 

JAMES LYON and JANE DOE LYON 

and the marital community therein, 

WESTERN NATIONAL MUTUAL 

INSURANCE COMPANY; JOHN 

DOE(S) 1 - 10 and the marital community 

therein,

Appellants.

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No. 38804-2-III

UNPUBLISHED OPINION

SIDDOWAY, J.P.T. — We granted discretionary review of the trial court’s refusal 

to dismiss this personal injury action for lack of personal jurisdiction, where it is 

undisputed that Kim Renette failed to effect timely service of process on any defendant, 

 



Judge Laurel H. Siddoway was a member of the Court of Appeals at the time 

argument was held on this matter. She is now serving as a judge pro tempore of the court 

pursuant to RCW 2.06.150.

FILED

August 29, 2023

In the Office of the Clerk of Court

WA State Court of Appeals Division III
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Renette v. Coates, et al.

2

including defendants James Lyon, T&E Trucking, LLC, and its owners Brianna and 

Tyler Coates (Defendants), who sought review. We reverse and remand with directions 

to dismiss the complaint with prejudice.

FACTS AND PROCEDURAL BACKGROUND

On June 22, 2018, Kim Renette was involved in an automobile accident. She was 

driving on State Route 902, near Medical Lake, when a large cab-over engine tractortrailer driven by James Lyon collided into the rear of her car. Mr. Lyon was driving the 

vehicle in the course of his employment by T&E Trucking, LLC. The LLC is owned by 

Tyler and Brianna Coates.

The collision caused Ms. Renette’s head to strike the driver-side window and left 

her with allegedly serious debilitating injuries, including back pain, limited mobility in 

her right arm and shoulder due to a rotator cuff separation, short-term memory loss, an 

acquired stutter, and aggravation of posttraumatic stress disorder.

By January 2019, Ms. Renette had retained Craig Swapp & Associates to represent 

her in asserting a personal injury claim. The Swapp firm provided notice of a claim to

Brianna Coates’s insurer, Nationwide Agribusiness Insurance Company (Nationwide), 

which requested copies of Ms. Renette’s medical records and bills. The Swapp firm

apparently sent some of the requested documents, but little other information was 

exchanged in furtherance of any settlement. 
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3

In December 2020 or January 2021, Ms. Renette retained a new law firm, Robert 

Cossey & Associates, to take over the claim. Attorney Aaron Jones assumed 

responsibility for the matter, and in February 2021 his paralegal notified Matthew Owen, 

the Swapp firm’s contact at Nationwide, to direct further communications to herself and 

Mr. Jones.

On June 14, 2021, Mr. Jones sent Mr. Owen a three-page letter in which he 

described the accident and Ms. Renette’s injuries and damages, and asked that 

Nationwide tender insurance policy information and agree to mediation. He stated that 

he would be filing suit and submitting a copy of the complaint to Nationwide, but 

encouraged mediation as “mutually beneficial especially in light of your acceptance of 

liability on behalf of your insured.” Clerk’s Papers (CP) at 119. 

Paula Jones,

1

another Nationwide adjuster, sent a response to Mr. Jones three days 

later, notifying him that she was now handling Ms. Renette’s claim. She said that given 

the limited information provided by Ms. Renette to date, disclosure of the policy 

information was not warranted, although she did confirm that Ms. Coates had an active 

business auto policy on the date of loss. She stated that Nationwide had not admitted 

liability of its insured but “appreciate[d] any opportunity . . . to attempt to reach an early 

 

1 Because of the potential for confusion between attorney Jones and adjuster 

Jones, we refer to Paula Jones by her first name. No disrespect is intended. 
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4

resolution.” CP at 125. Given the lack of supporting documentation with which to 

evaluate the claim, she stated that Nationwide was not ready to agree to “pre-litigation 

mediation.” Id.

She concluded the letter with a warning:

[I]f a Complaint has not been timely filed before the Statute of Limitations 

deadline of 6/22/2021, the defense counsel will be asked to assert (and to 

not waive) any and all applicable defenses, to include a Motion to Assert 

that the filing is barred in violation of the Statute of Limitations. 

Nationwide has been consistent with the expectation of the 3 year deadline 

and recommend[s] that you act accordingly. If you determine it is the best 

course of action to file a Complaint, I would appreciate a complimentary 

copy of the same. 

Id.

Mr. Jones filed a summons and complaint the next day, naming as defendants Mr. 

Lyon, the Coateses, T&E Trucking, LLC, Nationwide, and several others.2 Mr. Jones did 

not provide Paula with a courtesy copy of the complaint, but the fact that it was filed was 

brought to her attention by Nationwide’s lawyer. Karen Bamberger, outside counsel for 

Nationwide, filed a notice of appearance on behalf of the Defendants on June 28. It 

included the usual language that it did not constitute a waiver of objections to service of 

process, jurisdiction or venue. 

The filing of the complaint on June 18 tolled the period within which Mr. Jones 

was required to serve the Defendants for 90 days, meaning service needed to be 

 

2 Nationwide and the others were later dismissed from the action by stipulation. 
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accomplished by September 16, 2021. See RCW 4.16.170. Upon receiving Ms. 

Bamberger’s notice of appearance, Mr. Jones forwarded Ms. Bamberger a copy of the

letter/mediation request he had sent to Mr. Owen, informed her that he would be on 

paternity leave for the month of July, and stated that his paralegal “will be available to 

address any inquiries about records while I am out of the office for July.” CP at 127.

In July and August, Ms. Bamberger corresponded with personnel at Mr. Jones’s 

office about providing a stipulation and medical release so that Nationwide could obtain 

copies of Ms. Renette’s medical records from her providers. On August 10, Ms. Renette 

executed an authorization for release of medical records, and Mr. Jones signed a related 

stipulation on August 13. On August 17, Ms. Bamberger inquired of Mr. Jones whether a 

demand letter would be forthcoming. Mr. Jones still had not served any of the 

Defendants. 

Two weeks before the 90-day deadline for service, a paralegal at Mr. Jones’s 

office who had been assigned the responsibility of addressing service of process mailed a 

letter by certified mail, return receipt requested, to Mr. Lyon at his Ellensburg address. 

The letter, which was signed by Mr. Jones, requested insurance information from Mr. 

Lyon, and stated, “We are providing you with a copy of the Complaint and Summons that 

we have filed in this matter, as well as the Notice of Appearance we received.” CP at
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6

151. The letter did not ask Mr. Lyon to sign an acceptance of service. No copy of the 

letter was sent to Nationwide or Ms. Bamberger.

On the afternoon of September 14—two days before the expiration of the deadline 

for service—a judicial assistant in the superior court department to which Ms. Renette’s 

case was assigned e-mailed Mr. Jones and Ms. Bamberger about an upcoming status 

conference. The e-mail notified them that:

It is this department’s policy that if the Summons/Complaint has been 

served, and answer filed, and a Civil Joint Status Report completed and 

submitted to this department, a Civil Case Schedule Order can be issued in 

lieu of the Status Conference.

CP at 155. Mr. Jones responded by e-mail that afternoon, copying Ms. Bamberger. He 

stated:

The parties have been in mediation status and an answer has not been filed 

yet. Is it possible to continue the status conference out two months?

CP at 154. 

Ms. Bamberger did not respond to the e-mails. She later testified by declaration 

that she did not respond because she had taken a red-eye flight to Tennessee the morning 

of the 14th to visit her 85-year old mother, who was hospitalized for an emergency 

surgery. 

The deadline for serving process passed on September 16 without any defendant 

having been served. On September 17, Ms. Bamberger filed an answer asserting the 
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affirmative defenses of insufficient service, insufficient service of process, and lack of 

personal jurisdiction. On September 24, she filed a CR 12(b) motion to dismiss based on 

the affirmative defenses.

Mr. Jones’s office caused personal service to be effected on Mr. Lyon on 

September 27,3and on T&E Trucking, LLC’s registered agent on October 5. 

The certified letter that Mr. Jones’s paralegal had mailed to Mr. Lyon in August

was returned to Mr. Jones’s office on October 2 as unclaimed. 

In opposing the Defendants’ motion to dismiss, Ms. Renette argued they had 

waived their affirmative defenses by engaging in substantive discovery, that the statute of 

limitations should be equitably tolled, and that because Nationwide was aware of the 

complaint and service was effected before the motion was heard, the issue of service was 

essentially nullified.

The trial court denied the motion to dismiss. An order presented by Ms. Renette 

included 15 “findings of fact,” nothing identified as a conclusion of law, and the court’s 

order. The trial court made some handwritten modifications to the “findings.” 

A motion by the Defendants for reconsideration was denied. The Defendants 

sought discretionary review, which was granted.

 

3 Mr. Lyon was served at the same address to which the certified letter had been 

addressed. 
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ANALYSIS

Mr. Lyon, T&E Trucking, LLC, and the Coateses assign error to the trial court’s 

refusal to dismiss the complaint.

I. STANDARD OF REVIEW 

CR 12(b) authorizes a handful of defenses to be presented not only in the 

responsive pleading, but by motion, including the defenses of lack of jurisdiction over the 

person (12(b)(2)), insufficiency of process (12(b)(4)), insufficiency of service of process 

(12(b)(5)), and failure to state a claim on which relief can be granted (12(b)(6)). 

Whether service of process was proper is a question of law that we review de 

novo, as is a ruling on personal jurisdiction when the underlying facts are undisputed. 

Chengdu Gaishi Elecs., Ltd. v. G.A.E.M.S., Inc., 11 Wn. App. 2d 617, 622-23, 454 P.3d 

891 (2019); Precision Lab’y Plastics, Inc. v. Micro Test, Inc., 96 Wn. App. 721, 725, 981 

P.2d 454 (1999). Ms. Renette argues that we must review the trial court’s “extensive” 

findings of fact for abuse of discretion, however. Br. of Resp’t at 3.

A trial court’s findings of fact on a CR 12(b) motion are reviewed for substantial 

evidence, e.g., Harvey v. Obermeit, 163 Wn. App. 311, 318, 261 P.3d 671 (2011), but 

only if they are bona fide findings of fact. If a determination concerns whether evidence 

shows that something occurred or existed, it is properly labeled a finding of fact, but if 
No. 38804-2-III

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9

the determination is made by a process of legal reasoning from facts in evidence, it is a 

conclusion of law. State v. Niedergang, 43 Wn. App. 656, 658-59, 719 P.2d 576 (1986).

Many of the trial court’s “findings of fact” in this case are actually conclusions of 

law, such as the court’s “finding” that the failure to serve any defendant was the result of 

excusable error (finding 9), that Defendants’ notice of appearance did not preserve the 

defense of insufficient service of process (finding 11), that equitable tolling of the statute

of limitations is appropriate in this matter (finding 13), and that good cause exists to deny 

the motion to dismiss (finding 14). When conclusions of law are mislabeled as findings 

of fact, we treat them on appeal as what they are. E.g., Willener v. Sweeting, 107 Wn.2d 

388, 394, 730 P.2d 45 (1986).

“Proper service of the summons and complaint is a prerequisite to a court’s 

obtaining jurisdiction over a party. Harvey, 163 Wn. App. at 318. It is undisputed that 

Ms. Renette did not cause any of the Defendants to be served within the statute of 

limitations. While the Defendants are the appellants, we analyze the issues on appeal by 

reviewing Ms. Renette’s three arguments that the trial court properly denied the motion to 

dismiss.

II. THE DEFENDANTS DID NOT WAIVE THE STATUTE OF LIMITATIONS BY THE CONDUCT 

OF DISCOVERY

Ms. Renette first argues that “[t]he trial court correctly applied the waiver doctrine 

because appellants engaged in litigation unrelated to the statute of limitations, delayed 
No. 38804-2-III

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10

filing an answer, and continued to conduct discovery.” Br. of Resp’t at 18 (boldface and 

capitalization omitted). The Defendants dispute that waiver was a basis for the trial 

court’s denial of their motion, pointing out that the court struck Ms. Renette’s proposed 

finding that “Defendants conducted themselves in a manner inconsistent with the later 

assertion of the defense of insufficient service, and the Court is justified in declaring a 

waiver of that defense.” CP at 174 (striking the second sentence of finding 12). This 

would be persuasive were it not for the fact that the trial court entered two other,

inconsistent findings that the Defendants engaged in “discovery” unrelated to personal 

service. CP at 173-74 (findings 7 and 10). Ms. Renette also points out that the court’s 

13th finding, addressing equitable tolling, begins with the word “Additionally,” 

suggesting that equitable tolling was being identified as the court’s second basis for 

denying the motion to dismiss. Id. at 74. Finally, we could affirm a trial court’s ruling 

on any grounds the record and the law support. State v. Grier, 168 Wn. App. 635, 644, 

278 P.3d 225 (2012) (citing State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004)).4

Waiver in this context is sometimes defined as the “‘voluntary and intentional 

relinquishment or abandonment of a known right.’” Jet Set Travel Club v. Houston Gen. 

Ins. Grp., 30 Wn. App. 882, 884, 639 P.2d 220 (1982) (quoting Morrissette v. Cont’l Life 

 

4 We are unpersuaded by Ms. Renette’s reliance on the court’s finding that “the 

analysis set forth in Lybbert v. Grant County, 141 Wn.2d. 39, 1 P.3d 1124 (2000), is

instructive,” CP at 174, since the pinpointed citation of that decision could cut either way.
No. 38804-2-III

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& Acc. Co., 9 Wn. App. 789, 791, 514 P.2d 1391 (1973)). Even a party who properly 

pleads insufficient service of process may waive the defense “if either (1) assertion of the 

defense is inconsistent with defendant’s prior behavior or (2) the defendant has been 

dilatory in asserting the defense.” King v. Snohomish County, 146 Wn.2d 420, 424, 

47 P.3d 563 (2002). “The doctrine [of waiver] is designed to prevent a defendant from 

ambushing a plaintiff during litigation either through delay in asserting a defense or 

misdirecting the plaintiff away from a defense for tactical advantage.” Id. 

Ms. Renette does not contend that the Defendants were dilatory in asserting their 

defenses, nor could she; they ultimately filed their answer before even being served. She 

relies instead on an argument that the Defendants engaged in inconsistent conduct by 

engaging in discovery. “[W]here a party engages in considerable discovery not related to 

the [jurisdictional] defense” it can support a finding of waiver. Harvey, 163 Wn. App. at

324. “[A] party must do more than simply conduct discovery,” however; it must also act 

in a way that “indicate[s] that it has abandoned the defense.” Id. at 325, 323. 

The “discovery” on which Ms. Renette relies is the Defendants’ request that Ms. 

Renette provide a medical release and stipulate to her providers’ production of her 

medical records. She characterizes this as “discovery” because the stipulation includes

language about the permitted use in future litigation of the records produced, as permitted 

by CR 29; that the stipulation was produced on pleading paper under the caption of the 
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12

case; and that it provided that the medical providers could produce the records “in lieu of 

deposition.” CP at 142. The Defendants dispute its characterization as discovery. To us, 

whether or not it was traditional “discovery” is less important than whether anything 

about it could be understood as relinquishing a known right. 

More important are the following: Ms. Renette proposed and Nationwide had 

expressed agreement to information-sharing and mediation in lieu of litigation,

Nationwide had recently and clearly communicated its intent to assert a jurisdictional 

defense if available, the Defendants engaged in the “discovery” for only a couple of 

months and asserted their defenses immediately upon the defenses becoming available,

and the Defendants engaged in no misdirection or deceptive conduct.

It was Mr. Jones, in his letter to Mr. Owen, who broached resolution of the claim 

by information-sharing and mediation, stating in his letter on June 14:

[W]e are requesting and offering to engage in pre-litigation mediation. . . .

This is mutually beneficial especially in light of your acceptance of liability 

on behalf of your insured. . . . In anticipation of the mediation, we will 

work with you in order to provide documentation to you and your 

representatives, so that we can meaningfully participate in and arrive at a 

mediated outcome.

CP at 118-19. Paula’s response stated that she “very much appreciate[d] any opportunity 

for us to attempt to reach an early resolution of this case,” while at the same time making 

clear that would not be possible without being provided with more documentation of Ms. 
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Renette’s medical care and expenses. CP at 125. For Ms. Bamberger to obtain the 

medical release and stipulation was completely consistent with this nonlitigation purpose.

Nationwide had been very clear about its intent to assert any jurisdictional 

defense, telling Mr. Jones in no uncertain terms, on June 17, that if Ms. Renette did not 

act within the statute of limitations “defense counsel will be asked to assert (and to not 

waive) any and all available defenses,” and that “Nationwide has been consistent with the 

expectation of the 3 year deadline.” CP at 125.

The “discovery” on which Ms. Renette relies began to be discussed in July, had 

been authorized by Ms. Renette and Mr. Jones in mid-August, and had only been in 

process for a little over a month when it became apparent for the first time that Ms. 

Renette had allowed the deadline for service to pass without serving any defendant. The 

Defendants asserted the resulting defenses immediately.

Ms. Renette does not identify any intervening conduct by the Defendants that can 

fairly be characterized as misdirecting or deceptively suggesting that they were 

abandoning a known right. In Lybbert v. Grant County, the principal case on which Ms. 

Renette relies, it was “[o]f particular significance” to the Supreme Court that the Lybberts 

served Grant County with interrogatories designed to determine if the county had an 

insufficient service of process defense, and the county conveniently provided tardy 
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responses. Timely ones would have given the Lybberts time to cure their defective 

service. 141 Wn.2d 29, 42, 1 P.3d 1124 (2000). 

Lybbert’s discussion of this court’s decision in Romjue v. Fairchild, 60 Wn. App. 

278, 803 P.2d 57 (1991), observed that this court, too, “took particular note” of the fact 

that before the running of the statute of limitations, plaintiff’s attorney wrote defense 

counsel to express his understanding that the Defendants had been served, which defense 

counsel conveniently ignored until it was too late for the plaintiff to cure the service 

defect. 141 Wn.2d at 41.

In this case, the Defendants had no reason to expect that Mr. Jones’s office would 

fail to accomplish service by the September 16 deadline until it failed to do so. They had 

no notice that a paralegal in Mr. Jones’s office had mailed the summons and complaint to 

Mr. Lyon rather than arrange for it to be personally served. Ms. Renette has offered no 

reason why personal service of process on one of the Defendants by the September 16 

deadline would not have been simple. The identity of the registered agent for Mr. 

Lyons’s employer was available. Mr. Jones’s office had Mr. Lyon’s correct residence 

address. 

As for the September 14 e-mail from the superior court, Ms. Renette misdescribes 

the communication in two ways. The judicial assistant did not ask the parties’ lawyers if 

service of process had been accomplished; she simply gave notice of circumstances under 
No. 38804-2-III

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which they would not be required to attend the scheduling conference. No one in Ms. 

Bamberger’s office would have been under the impression that the court was seeking a 

report on the status of service of process. Nothing Mr. Jones said in his response would 

have struck anyone in Ms. Bamberger office as requiring correction; he did not say that 

any defendant had been served. And Ms. Bamberger offers an explanation why she, 

personally, would not have seen the communications.

For all of these reasons, waiver does not apply.

III. THE DEFENDANTS’ FRAMING OF THEIR REQUEST FOR RELIEF DID NOT RENDER THE 

STATUTE OF LIMITATIONS IRRELEVANT

Ms. Renette next argues that “[t]he [trial] court correctly denied the motion 

because Defendants asked the court to dismiss the case on grounds of insufficient service 

and all parties were properly served by the time the court ruled.” Br. of Resp’t at 22

(boldface and some capitalization omitted).

In this single-paragraph argument, unsupported by any legal authority, Ms. 

Renette contends that the operative language of the motion to dismiss (in her view) relies 

only on jurisdictional and insufficiency of process grounds, rather than the statute of 

limitations. As a result, she argues, all she had to do to defeat the motion was effect 

service before the motion was heard—which she did. See Br. of Resp’t at 22 (relying on 

CP at 80, lines 20-25).
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Contrary to her argument, the Defendants tied their jurisdictional and service of 

process-related grounds to the expiration of the statute of limitations. See CP at 83-85. 

No different framing of their motion was required.5 

IV. THE FACTORS NECESSARY FOR EQUITABLE TOLLING ARE NOT PRESENT

Ms. Renette’s final argument is that “[t]he trial court was correct to apply 

equitable tolling to Ms. Renette’s statute of limitations [defense] because she was 

reasonably diligent and the procedural oversight was excusable neglect.” Br. of Resp’t at 

23 (boldface and some capitalization omitted).

The doctrine of equitable tolling permits a court to allow an action to proceed even 

though the statutory time period for commencing the action has elapsed. In re Pers. 

Restraint of Bonds, 165 Wn.2d 135, 141, 196 P.3d 672 (2008) (plurality opinion). 

Equitable tolling is “a narrow doctrine to be used only sparingly and [that is] not 

applicable more generally to ‘garden variety’ claims of neglect.” In re Pers. Restraint of

Haghighi, 178 Wn.2d 435, 447-48, 309 P.3d 459 (2013).

Four factors limit application of the doctrine:

Washington law allows equitable tolling of a statute of limitations in a civil 

suit when (1) the plaintiff has exercised diligence, (2) the defendant’s bad 

faith, false assurances, or deception has interfered with the plaintiff’s 

diligent efforts, (3) tolling is consistent with (a) the purpose of the 

 

5 This is a frivolous argument. If a different framing of the motion were required, 

we would remand for the Defendants to bring the differently-framed motion. It would be 

just as viable now as it was when brought initially.
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underlying statute and (b) the purpose of the statute of limitations, and 

(4) justice requires tolling the statute of limitations.

Fowler v. Guerin, 200 Wn.2d 110, 113, 515 P.3d 502 (2022). Each factor must be 

satisfied for the doctrine to apply. Id. at 124-25. The burden is on the party seeking 

equitable tolling to establish compliance with all four factors. Bonds, 165 Wn.2d at 144. 

There is no evidence that Ms. Renette exercised diligence in serving the 

Defendants. Her single effort at timely service was undertaken unreasonably late and 

was inexcusably ineffective.

The second factor is required because “a defendant should lose the benefits of 

finality provided by statutes of limitation only when that defendant has engaged in 

conduct that justifies making an exception.” Fowler, 200 Wn.2d at 121. For the reasons 

we discussed in connection with waiver, there is no evidence that any bad faith, false 

assurances, or deception on the part of the Defendants interfered with Ms. Renette’s 

effort to effect service.

Given that Ms. Renette fails to demonstrate either of the first two factors, we need 

not address the third and fourth; nevertheless, Fowler reminds us that “statutes of 

limitation reflect the importance of finality and settled expectations” and that statutory 

time bars serve as a “legislative declaration of public policy which the courts can do no 

less than respect, with rare equitable exceptions.” Id. at 118 (internal quotation marks 
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omitted) (quoting Bilanko v. Barclay Ct. Owners Ass’n, 185 Wn. 2d 443, 451-52, 375 

P.3d 591 (2016)). 

We reverse the order denying the motion to dismiss and remand with directions to 

dismiss the complaint with prejudice. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040.

Siddoway, J.P.T.

WE CONCUR:

Pennell, J. Staab, J.