### FILED FEB 24, 2015 In the Office ofthe ClerkofCourt W A StateCourt ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON

. DIVISION THREE IRA WILLIAMS and ROBERT ) WILLIAMS, ) No. 31962-8-111 ) Appellants, ) ) v. ) ) UNPUBLISHED OPINION UNDERWIRE SERVICES, LLC and ) TRAVIS HECKMASTER, ) ) Respondents. ) FEARING, J.

- We address another appeal involving a plaintiffs failure totimely

serveprocess and then arguingthe defendants waived the defense oflack ofservice. Plaintiffs Ira and RobertWilliams filed their lawsuit one day before the statute of limitations expired and still have not served either defendant, Travis Heckmaster or Underwire Services, with the summons and complaint. Thetrial court dismissed the Williamses' claim for lack ofservice. We affirm ontheprincipalbasis that defense counsel was unaware ofthe lack ofservice on his clients until afterthe statute of limitations expired and did not take steps to mislead the Williamses.No. 31962-8-111 Williams v. Underwire Servs.

FACTS Because the trial court granted Travis Heckmaster's and Underwire Services' summaryjudgmentmotion, we write the facts ofthe accident and procedural background in a light most favorable to Ira and Robert Williams. On February 20, 2007, Heckmaster drove an 18-wheel semitruck and trailer on Interstate 90 near Snoqualmie Pass. Heckmaster then worked for Underwire Services, a FloridaLLC. Snowy weather demanded the use ofchains, but Heckmaster failed to stop and install chains. Heckmaster lost control ofhis truck, which collided with Ira Williams' vehicle. The collision injured Ira Williams. PROCEDURE On February 19,2010, Ira and Robert Williams filed suit for negligence against Underwire Services, LLC, and Travis Heckmaster. Ira Williams and her husband are Texas residents. The Williamses proceeded pro se with limited assistance from Texas attorney John Rowley. The complaint alleged, in part: 3.1 Defendant Underwire Services, LLC is a Florida corporation, with their its [sic] office located at 18377 Foliage Rd Diamond, MO 64840. It's [sic] registered agent, upon whom service made [sic] by made is James Carter, at 1111 3rd Ave W, Suite 150, Bradenton, FL 34205

.... 3.2 Defendant Travis Heckmaster, was an agent and/or employee of Underwire Services, LLC on the day in question described above. His whereabouts are presently unknown. Ifhe is not able to be located, service will take place on him through the Secretary ofState ofWashington, in accordance with

### RCW46.64.040.

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### v. Underwire Servs.

Clerk's Papers (CP) at 1 (alternation in original). On February 19, the Williamses also filed separate summonses against Underwire Services and Heckmaster. The three-year statute oflimitations for the Williamses' claim ran on February 20, 2010. RCW 4.16.080. Under RCW 4.16.170, however, the Williamses had 90 additional days, oruntil May 21, in which to complete service. The Williamses never completed service. The record is devoid ofany attempt by the Williamses to serve either defendant. On April 27, 2010, attorney Robert Tenney filed a notice ofappearance for defendants Underwire Services and Travis Heckmaster. The notice read: YOU ARE HEREBYNOTIFIED thatMEYER, FLUEGGE 

### & TENNEY, P.S., withoutwaiving objections as to impropervenue, lack of jurisdiction, insufficiency ofprocess, or insufficiency ofservice ofprocess, hereby appear as attorneys for UNDERWIRE SERVICES, LLC, and TRAVIS HECKMASTER. CP at 6. The record shows no answer has been filed by either defendant. Also on April 27, 2010, defendants sent husband Robert Williams discovery requests with 21 interrogatories and five requests for production. Examples included: INTERROGATORY NO.2: Statethe extent ofyour education, givingthe full details thereof. INTERROGATORY NO.3: Please state the names and ages ofall your children and the identity ofeach child's natural father. INTERROGATORY NO.6: List the names and addresses ofall hospitals, doctors, osteopaths, chiropractors orhealers who have examined ortreated you in the lastten (10) years preceding the occurrencereferredto in your complaint, the nature ofthe treatment, and the approximate dates thereof.

3No. 31962-8-111 Williams v. Underwire Servs. 

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# I INTERROGATORY NO. II: Please state the names and addresses ofany and all persons having any knowledge whatsoever concerning the circumstances ofthe occurrence referred to in your complaint, ofyour physical condition or having knowledge ofrelevant facts pertainingto the above-entitled cause, stating for each whether ornot they were an eyewitness to the occurrence, and state his orherpresent occupation, address and phone number. INTERROGATORY NO. 17: Describe your presentphysical condition with regard to any mental orpsychiatric condition thatyou now allegedly suffer. REOUEST FORPRODUCTION I: Pleaseproduce legible copies ofany records related to you ofany health care providers orentities identifiedby you in your answers to Interrogatories 6, 7, 8 and 9. REQUEST FORPRODUCTION 5: Pleaseproduce legible copies ofany other materials, documents, and othertangible items orthings, not previously provided, related to the subject matter ofyour lawsuit, including liability and damages. CP at 47-55. On April 27, 2010, defendants requested a "STATEMENT OF DAMAGES" from Ira Williams. CP at 71. Defendants also sent Ira Williams a discovery request with 71 interrogatories and 20 requests for production ofdocuments. Through these extensive discovery requests, defendants sought information and records relating to Ira Williams' negligence claim and more. No discovery request asked about any defense of insufficiency ofservice. InJune 2010, RobertTenney learned from his client Underwire Services ofalack ofservice on defendants. Attorney Tenney spoke with the Williams' Texas counsel, John

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# I No. 31962-8-111 Williams v. Underwire Servs. 

# I Rowley, on October 25,2010. Tenney declared, in support ofamotion for summary judgment: I told Mr. Rowley that Defendants had a statute oflimitations defense because Defendants had notbeen served with process and the statute had run. I continuedto tell Mr. Rowley thatthe statute of 

# j limitations had run because our clients had notbeen served in our occasional telephone conversations overthe years. i 

# 1 CP at 113-14. 

# I I OnApril 22, 2011, in response to a clerk's motion to dismiss for lack of prosecution, Ira Williams filed a letter with the Kittitas County Clerk asking to keepthe

case open and pending. Williams mentioned that she hopedto respond to Underwire's 

# I discovery requests and then settle the case. Williams sent a copy ofthe letter to Robert Tenney. 

# I OnMay4,2012, Ira Williams filed a second letter with the Kittitas County Clerk 

# I asking herto keep this case open and pending. On April 26, 2013, Ira Williams filed a third letter with the Kittitas County Clerk asking herto keep this case open and pending. Williams wrote: "Theparties are going to have a mediation to hopefully settle the case." CP at 10. OnJuly 31, 2013, defendants moved for summaryjudgment.·Defendants argued thatthe Williamses failed to commence the personal injury suit within the three-year statute oflimitations, because the Williamses never served either defendant. Ira and Robert Williams argued, in response to defendants' summaryjudgment 5

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# f No. 31962-8-111 Williams v. Underwire Servs. motion, that defendants waived service by eitherparticipating in discovery orbeing dilatory in asserting the defense. Husband Robert Williams, in an affidavit opposing the motion, declared: 3. OnFebruary 19,2010, I (along with my wife Ira) filed ourpro se complaint against the two Defendants. We had a summons issued on the same day as we intended at thatpointto serve Underwire Services, LLC and Travis Heckrnaster. 4. Fromthat date forward, I never communicated, norhad anyone else on my behalf, communicateto the Defendants, their insurance carrier HARCO (who had sent me some correspondence), ortheir attorneys that I had filed a Complaint. Nonetheless, on April 22, 2010, orwithin a very few days thereafter, I received in the mail the Notice ofAppearance in this case, even though at such time I hadnotyet affected service ofprocess on the two Defendants. 

### 5. Then on April 27, 20

### I0 orwithin a very few days thereafter, and again before I had had service ofprocess completed on the two Defendants, I received in the mail Interrogatories, Requests for Production, and a Request for Statement ofDamages. Those documents made it appear that the lawsuit was now fully underway and that service on the Defendants was no longer a necessity. CP at45. Ira Williams also signed an affidavit opposing defendants' motion for summary judgment. The affidavit repeated the testimony ofRobert Williams. The affidavit further declared: I did notreceive any documents from [Underwire Services] informing me that they objected that [they] had never been served, nor asserting that limitations shouldpreclude my lawsuit on the basis that [they] were not served, until overthree years later on July 30,2013. CP at 69. Neither Ira Williams nor Robert Williams disclosed, in their declarations, any



### 6No. 31962-8-III Williams 

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efforts exerted to serve process on either defendant. Defense counsel Robert Tenney averred in a declaration supportingthe summary judgmentmotion: 2. Defendants served Plaintiffs withbasic written discovery requests onApril 27, 2010. To date, Plaintiffs have not answered said discovery, nor have Defendants soughtto compel answers to said discovery. Plaintiffs have not initiated any discovery at any time. 3. My first communication with Plaintiffs' counsel, John H. Rowley, was bytelephone on October 25,2010. I told Mr. Rowley that Defendants had a statute oflimitations defense because Defendants had not been served withprocess and the statute had run. I continued to tell Mr. Rowley that the statute oflimitations had runbecause ourclients had not been served in our occasional telephone conversations overthe years. 4. When I filed my Notice ofAppearance and sentplaintiffs routine written discovery onApril 27, 2010, I did not know my clients had notbeen served. MyNotice ofAppearance expressly reserves the defenses of "insufficiency ofservice ofprocess" and "insufficiency ofprocess." 

### 5. I did not learn my clients had not been served until after the statute oflimitations had run onFebruary 20, 2010. 6. I did not learn my clients had notbeen served until more than ninety days after plaintiffs filed their Complaint on February 19, 2010. 

### 7. I learned my clients had not been served withprocess inJune, 2010. CP at 113-14. The trial court granted defendants' summaryjudgmentmotion. LAV./ AND ANALYSIS Ira and Robert Williams contend thetrial court erred when it granted summary judgmentto the defendants for lack ofservice within the applicable statute oflimitations. Under familiar principles ofsummaryjudgmentjurisprudence, this court reviews a

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# I J No. 31962-8-111 Williams v. Underwire Servs.**~** 

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# I summaryjudgmentorder de novo, engaging in the same inquiry as the trial court. 

# I Highline SchoolDist. No. 401 v. Port o/Seattle, 87 Wn.2d 6, 15,548 P.2d 1085 (1976); 

# ! I Mahoney v. Shinpoch, 107 Wn.2d 679, 683, 732 P.2d 510 (1987). Summaryjudgment is 

# I I proper ifthe records on file with the trial court show "there is no genuine issue as to any 

# i ! material fact" and "the moving party is entitled to ajudgment as a matter oflaw." CR 

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# I 56(c). This court, like the trial court, construes all evidence and reasonable inferences in 

# i I the light most favorable to Ira and Robert Williams, as the nonmoving parties. Barber v. i r 

# I BankersLife & Cas. Co., 81 Wn.2d 140, 142,500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wn.2d 434,437,656 P.2d 1030 (1982). A court may grant summaryjudgmentifthe 

# ! i I pleadings, affidavits, and depositions establish that there is no genuine issue as to any material fact and the moving party is entitled tojudgment as a matter oflaw. Lybbertv. Grant County, 141 Wn.2d 29,34, 1P.3d 1124 (2000). The Williamses concede thatthey failed to serve Underwire Services or Travis Heckmaster. They argue the defendants waived the defense oflack ofservice ofprocess. They do not assert estoppel. Waiver is the voluntary relinquishment ofa known right. Spokane SchoolDist. No. 

### 81 v. Spokane Educ. Ass 'n, 182 Wn. App. 291, 313, 331 P.3d 60 (2014); Cornerstone Equip. Leasing, Inc. v. MacLeod, 159 Wn. App. 899,909,247 P.3d 790 (2011). Waiver may be inferred from circumstances indicating an intent to waive. 224 Westlake, LLCv. Engstrom Props., LLC, 169 Wn. App. 700, 714, 281 P.3d 693 (2012). To constitute 8No. 3 1 962-8-II1 Williams 

### v. Underwire Servs. implied waiver, there must exist unequivocal acts or conduct evidencing an intent to waive. Harmony atMadrona Park OwnersAss'n v. Madison Harmony Dev., Inc., 143 Wn. App. 345,361,177P.3d 755 (2008). Waiver will not be inferred from doubtful or ambiguous factors. Cent. Wash. Bankv. Mendelson-Zeller, Inc., 113 Wn.2d 346,354, 779 P.2d 697 (1989). The intention torelinquish the right or advantage must be proved, and the burden is ontheparty claiming waiver. Jones v. Best, 134 Wn.2d 232,241-42, 950 P.2d 1 (1998). No evidence points to any express surrenderby Underwire Services orTravis Heckmaster ofa defense oflack ofservice after knowledge ofthe right. Tothe contrary, defense counsel warned the Williamses' Texas lawyer ofthe availability ofthe defense. The Williamses claim defendants waived the defense by engaging in discovery on other issues and waiting three years to bring a motion to dismiss. We considerthese factors to be equivocal, particularly in light ofthe warning sounded. Washington decisions addressing waiver oflack ofservice ofprocess rarely mention the standard elements for waiver and omit analyzing a claim ofwaiver under the standard principles applied in other settings. This omission may result from the waiver elements being relaxed in the setting ofthis affirmative defense. Washington decisions addressing the defense oflack ofservice also blurthe distinction between waiver and estoppel. Waiver emphasizes the intentional conduct ofthe party denying waiver and estoppel focuses on the detriment to theparty asserting estoppel by the other party's 9i



# I I No. 31962-8-111 Williams v. Underwire Servs. 

# I conduct. Kessinger v. Anderson, 31 Wn.2d 157,169, 196 P.2d 289 (1948). 

# I

, Lybbert v. Grant County, 141 Wn.2d 29, 1P.3d 1124 (2000) is the leading 

# I I Supreme Court decision on waiver ofimproper service ofprocess. The Supreme Court held thatthe county waived the affirmative defense as a matter oflaw and established at 

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, leasttwo circumstances underwhichcourts will impose the doctrine. Lybbertteaches that a defendant can waive service in two ways: (1) ifthe defendant has been dilatory in asserting the defense, or (2) ifthe defendant's assertion ofthe defense is inconsistentwith the defendant'sprevious behavior. King v. Snohomish County, 146 Wn.2d 420,424,47 P.3d 563 (2002);Lybbert, 141 Wn.2d at 38-39. We address belowthese independent grounds for waiver. The doctrine ofwaiver is designed toprevent a defendant from ambushing a plaintiffduring litigation eitherthrough delay in asserting a defense or misdirecting the plaintiffaway from a defense for tactical advantage. King v. Snohomish County., 146 Wn.2d at424; Harvey v. Obermeit, 163 Wn. App. 311, 323,261 P.3d 671 (2011). Therefore, Washington courts generally require indicia of"lying in wait,"to deprivethe plaintiffofan opportunity to cure defective service, before applying waiver. StreeterDybdahlv. Nguyet Huynh, 157 Wn. App. 408, 416-17, 236 P.3d 986 (2010). As analyzed below, Washington courts also have not applied the doctrine without prejudice totheplaintiff. Underwire Services and Travis Heckmaster filed a notice ofappearance, in which 10No. 31962-8-Ill Williams 

### v. Underwire Servs. they reserved the defense oflack ofservice. A notice ofappearance has no bearing on the issue ofwaiver. An express reservation in a notice ofappearance is unnecessary to preserve the defense. Adkinson v. Digby, Inc., 99 Wn.2d 206,209,660P.2d 756 (1983). Since the filing ofa notice ofappearance without including the caveat cannot constitute a waiver ofthe defense, filing the notice ofappearance with the caveat should not serve as

a vehicle to preserve it. Lybbert, 141 Wn.2d at 43. Neither is a notice ofappearance a pleading under CR7(a) that might preserve the defense. Lybbert, 141 Wn.2d at 43. DilatoryAssertion of Defense The Williamses fault Underwire Services and Travis Heckmaster for waiting more thanthree years to objectto service. As noted inLybbert: [a] defendant cannotjustlybe allowed to lie in wait, masking by misnomer its contentionthat service ofprocess has been insufficient, and then obtain a dismissal onthat ground only afterthe statute oflimitations has run, thereby depriving the plaintiffofthe opportunity to cure the service defect. 141 Wn.2d at 40 (quoting Santos v. State Farm Fire & Cas. Co., 902 F.2d 1092, 1096 (2d Cir. 1990)). The law stresses the importance ofraising procedural defenses before any significant expenditure oftime and money has occurred and at a time when theplaintiff could remedy the defect. Kingv. Snohomish County, 146 Wn.2d at 426; In re Marriage ofTsarbopoulos, 125 Wn. App. 273, 288, 104 P.3d 692 (2004). Nevertheless, delay in

11No. 31962-8-III Williams v. Underwire Servs. filing an answer does notwaive the defense. Gerean v. Martin-Joven, 108 Wn. App. 963,973,33 P.3d 427 (2001). Two cases assist in determining whether defendants' delay constitutes waiver: Raymond

### v. Fleming, 24 Wn. App. 112, 600 P.2d 614 (1979) and French 

### v. Gabriel, 116 Wn.2d 584,806 P.2d 1234 (1991). In Raymond, defendant filed a timely notice of appearance onMay 31, 1977, but failed to file an answer. Plaintiffrepeatedly asked for

an answerto the complaint, and defendant repeatedly requested, and was granted, continuances. On January 23, 1978, almost eight months after defendant noted his appearance, plaintiffmoved for a defaultjudgment. Plaintiffalso moved to compel

answers to interrogatories served on October 5, 1977. Defendant asked for, and was granted, two more continuances. OnMarch 3, 1978, defendant moved for dismissal based on insufficient service ofprocess. In Raymond

### v. Fleming, this court held: "Defense counsel'srepeatedly requesting

moretime, his not responding to the interrogatories, and his obtaining two orders of continuancewere both dilatory and inconsistentwith the later assertion ofthe defense of insufficient service ofprocess." 24 Wn. App. at liS. This court further noted thatthese delays were not aimed at determining whether a defense for insufficient service existed. In French v. Gabriel, our Supreme Court found that the defendant had not waived service. Theplaintifffiled a malpractice claim in January 1986; the defendant filed a notice ofappearance onFebruary 28, 1986; and the defendant filed an answer, asserting 12

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for the first time insufficient service, on August 26, 1986. The French court distinguished Raymond, writing: "Unlike the defendant in Raymond, [the defendant in French] raised the defense ofinsufficient service ofprocess in his first action ofrecord, his answer. The inconsistency that concerned the Raymondcourt is simply notpresent here." 116 Wn.2d at 593. The plaintiffcould have moved for defaultjudgment, but did not. French, 116 Wn.2d at 593. The high court agreed with this court that ," [w]hile not to be condoned, mere delay in filing an answer does not constitute a waiver ofan insufficient service defense.'" French, 116 Wn.2d at 593-94 (quoting and affirming French v. Gabriel, 57 Wn. App. 217, 222,788 P.2d 569 (1990». In Harvey v. Obermeit, 163 Wn. App. 311, 323,261 P.3d 671 (2011), the court held that raising the defense was not dilatory since the defendant asserted the defense in his answerto the complaint. The defendant did not file a motion to dismiss until a half year afterthe lawsuit commenced. This appeal is more like French. The Williamses could have moved for default judgment, but did not. The parties hoped to settle the case. In sparse discussions, the defendants stated their beliefthat they possessed a defense ofinsufficient service. In its first action ofrecord, a summaryjudgmentmotion, the defendants asserted the defense. The record contains no evidence thatthe defendants laid in wait for the statute of limitations to expire ormasked its defense oflack ofservice. The Williamses emphasize that defendants waited three years to seek dismissal. We find no decision where the 13No. 31962-8-III Williams v. Underwire Servs.

defendant waited this long to assert the defense. Nevertheless, Ira Williams presents no evidence ofprejudice such as was present in French. By the time defendants knew ofthe lack ofservice, the Williamses could not correct the defect. Inconsistent Behavior The Williamses argue that the defendants' extensive discovery requests are inconsistent with its asserting a lack ofservice defense. The Williamses ask this courtto apply a bright line rule: "Ifa defendantbegins the discovery process as to the merits of the case, without first assertingthe affirmative defense oflack ofservice, the defendant waives that affirmative defense." Br. ofAppellant at 7. No such bright line exists. Courts find assertion ofa service-related defense inconsistent with a defendant's prior behavior when the record suggests the defendant actively soughtto conceal the defense until after the expiration ofthe statute oflimitations and 90-day period for service. In Romjue v. Fairchild, 60 Wn. App. 278, 803 P.2d 57 (1991), a defendant engaged in discovery unrelated to a service-related defense before moving to dismiss and waited until three months afterthe statute oflimitations expiredto notify plaintiff's counsel ofinsufficient service, although plaintiff's counsel wrote to defendant's counsel priorto the expiration ofthe statute oflimitations that he understood the defendants had been properly served. The court held the defendant waived the defense by conducting himselfin a manner inconsistent with the later assertion ofthe defense.

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Another circumstance in favor offinding waiver is where a party engages in considerable discovery not related to the defense. Harvey v. Obermeit, 163 Wn. App. at 324 (2011). However, the mere act ofengaging in discovery is not always tantamount to conduct inconsistent with a later assertion ofthe defense ofinsufficient service. Lybbert, 141 Wn.2d at41; Harveyv. Obermeit, 163 Wn. App. at 324; Romjue, 60 Wn. App. at 281; Omaits 

### v. Raber, 56 Wn. App. 668, 670-71, 785 P.2d 462 (1990). A party must do

more than simply conduct discovery. Harvey 

### v. Obermeit, 163 Wn. App. at 325. In Lybbert, waiver ofa service-related defense was found whenthe defendant acted as ifit were preparing to litigate the merits ofthe case by engaging in discovery,

none ofwhich had to do with sufficiency ofservice ofprocess. The county's counsel associated with outside counsel and discussed the merits ofthe case andthepossibility of mediation with opposing counsel. The defendant also failed to timely respond to the plaintiffs interrogatory asking whether the defendantplannedto rely on any affinnative defenses. A timely response would have allowed theplaintiffseveral days to cure defective service. In King 

### v. Snohomish County, 146 Wn.2d 420, the county raised a claim-filing defense in its answer but did not clarify the defense in response to an interrogatory. The parties engaged in 45 months oflitigation and discovery, during which time the defendant sought four continuances and filed a motion for summaryjudgmentthat did not mention the defense. The court found waiver on the basis thatthe county's assertion ofthe claim15No. 31962-8-111 Williams 

### v. Underwire Servs. filing defense, in a motion to dismiss afterthe case was set for trial, was inconsistentwith this priorbehavior. Another illustrative decision on waiver is Harvey v. Obermeit, 163 Wn. App. 311, 314,261 P.3d 671 (2011). James Harvey suffered injuries when he and Richard Obermeitwere involved in a car accident on August 4,2006. Obermeit's address in Maple Valley was noted on the accident report. On July 23, 2009, Harvey filed a negligence action against Obermeit. After Harvey's process server unsuccessfully attempted to serve papers on Obermeit atthe latter's home, Harvey decided to affect substitute service under the nonresident motorist statute, RCW46.64.040. On October 15,2009, Richard Obermeits' counsel sent a notice ofappearance to Harvey's counsel. From October 15 to October21, Obermeits' counsel had no other contactwith Harvey. The 90-day service period expired on October 21. OnNovember2, Obermeit filed an answerthat asserted affirmative defenses regarding Harvey's failure to

serve process as required by law, lack of jurisdiction, and expiration ofstatute of limitations. The same day, Obermeit served Harvey with general interrogatories and requests forproduction, a request for statement ofdamages, and ajury demand. Also on November2, Harvey served Obermeit with pattern interrogatories and requests for production. OnJanuary 8 and January 11, 2010, Obermeit responded to Harvey's discovery requests. On January 14, Obermeit issued records deposition subpoenas to obtain Harvey's medical records and served them on health careproviders, along with a 16 

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notice ofintentpursuantto RCW 70.02.060. Harvey v. Obermeit, 163 Wn. App.at 314­ 15. On February 10,2010, Richard Obermeit filed a motion to dismiss pursuantto CR 12(b)(2) and CR 12(b)(5), citing lack ofservice ofprocess, lack of jurisdiction, and expiration ofstatute oflimitations. He argued that service under RCW 46.64.040 was not appropriate because Obermeits was a Washington resident and there was no evidence that he left the state or attempted to evade service. The day after Richard Obermeit filed his motion, James Harvey filed a motion for partial summaryjudgmentto dismiss Obermeit's affirmative defenses. Obermeit gave his deposition on March 2, 2010. On or about April 9, Obermeitretained a medical expert witness and made a CR 35 discovery request that Harvey submit to a medical examination. Harvey 

### v. Omermeit, 163 Wn. App. at 315-16. The trial court concludedthat service on the secretary ofstate was improper because Richard Obermeitwas found within the state but not personally served. Harvey did not make a due and diligent search. The court ruled that Harvey lacked personal jurisdiction over Obermeit, and the statute oflimitations had expired. On appeal, James Harvey argued, in part, that Richard Obermeit waived the issue ofineffective service ofprocess by engaging in discovery unrelated to that issue, not bringing a motion to dismiss as soon as reasonably practicable, and acting inconsistently with this defense. This court answered "no." Although Obermeit conducted some 17 

# INo. 31962-8-III Williams 

### v. Underwire Servs. discovery before he filed his motion to dismiss on February 10,2010,this discovery included questions from both parties about the issues ofservice ofprocess and jurisdiction. Harvey was aware throughout discovery that Obermeitwas contesting service. Some discovery between the parties tookplace after Obermeit filed his motion to dismiss. Although Obermeit did not alert Harvey to the issue ofineffective service of process before the 90-day service period or the statute oflimitations expired, none ofthe cited authorities supports the proposition that waiver necessarily follows because a defendant does not do this. Furthermore, there was no indication in the record that Obermeitwrongfully led Harvey to believe that service had been accomplished. Travis Heckmaster and Underwire Services took no steps to hide the lack of service during the time that Ira Williams could have correctedthe insufficiency. The defendants appeared through counsel before the expiration ofthe 90-day service window, but counsel had no knowledge ofa lack ofservice until thereafter. Defendants sent standard discovery requests to both plaintiffs, but the Williamses made no effortto

answer discovery. This appeal differs from cases where Washington courts found waiver ofservice

on the basis ofinconsistent conduct. Unlike King andLybbert, the defendants did not fail to answer an interrogatory that soughtto clarifY the defense or, unlike King, engage in 45 months oflitigation and discovery. Also unlikeKing, the Williamses and defendants did not engage in extensive discovery over an extended time. The Williamses never sent 18No. 31962-8-III Williams 

### v. Underwire Servs. discovery requests inquiring about potential affirmative defenses, let alone any interrogatories or requests for production. Instead, in the three years between the Williamses filing this suit and defendants moving for summaryjudgment, the case lay placid such thatthe county clerk repeatedly sought to dismiss it for want ofprosecution. Unlike Romjue, the defendants did not seekto conceal the defense until after the statute oflimitations expired. In Romjue, the record indicated the defendant's counsel should have known ofthe defense when he received the copy ofthe process server's affidavit from Romjue's counsel, some three weeks before he initiated discovery. Underwire Services' and Travis Heckmaster's counsel learned ofthe lack ofservice after the statute oflimitations expired. This appeal also diverges from Lybbert. In Lybbert, the process server's affidavit

was filed by the plaintiffs, such that Grant Countyknew or should have known that the defense ofinsufficient service ofprocess was available to it. The undisputed facts, on appeal, show the defendants did not earlier learn ofthe defense from a process server's affidavit, because the Williamses never attempted service. Ira and Robert Williams argue thatBlankenship v. Kaldor, 114 Wn. App. 312, 57 P.3d 295 (2002) controls the outcome ofthe appeal. Julianne Kaldor engaged in general discovery before filing a motion to dismiss for lack ofservice. Although the courtrelied

on discovery efforts in its ruling, the court also noted that Kaldor's father misled Blankenship's process server into believing that service on him was acceptable and the 19

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suitwould be answered by his insurance company. Blankenship could have corrected the defect in service ifthe defense had timely warned her that Julianne Kaldor did not live with her father. The Williamses argue that the quantity ofdiscovery is relevant, butthey cite no law to support this position. The quantity and extent to which a party participates in discovery, through logic and experience, necessarily concern whether a later assertion of the defense is inconsistent. Defendants' discovery requests are not inconsistent with its lack ofservice defense because their counsel did not know ofthe defense when he sent those initial requests. While counsel might be encouraged to talk to his client before flooding plaintiffs with discovery requests, there is no evidence ofbad faith or misconduct showing that counsel laid in wait. The type ofinterrogatories and requests for production were typical for apersonal injury case and civil defense counsel routinely send initial discovery requests within days offiling the notice ofappearance. This appeal has an important element missing from any other Washington decision. The Williamses present no evidence thatthey took any steps to perfect service. In all reported decisions, theplaintifftook some step and believed they hadperformed service thereby. The Williamses can make no claim to have been misled into believing they had served the defendants. Defendants took no steps to ambush or lull Ira orRobert Williams into a safe slumber.



### 20No. 31962-8-III Williams v. Underwire Servs.

CONCLUSION We affirm the summaryjudgmentdismissal ofplaintiffs complaintbased onthe lack ofservice on the defendants. A majority ofthe panel has determined this opinion will not be printed inthe WashingtonAppellate Reports, butit will be filed for public record pursuantto RCW 2.06.040. Fearing, 1. WE CONCUR:

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Lawrence-Be ey, 

### J.

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