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Lewis v. Combined Transport9/13/2005
ddress}. 02/09/04 I contacted the Clark County {Public Utility District} and learned that {Johnson} does not have power in his name. . . . 02/19/04 I verified that the older {woman} at {the Lakeshore Drive address} is {Johnson's} mother. I did not receive the letter back.
CP at 26.
Process servers Michael and Jennifer Cheney also attempted to locate and serve Johnson in February and March of 2004. The Cheneys' joint declaration indicates that on March 8, they contacted Johnson's brother, Gordon, at his home in Kalama, Washington, who told them that he had not talked with Johnson for a month, but he believed that Johnson was living in Longview, Washington. On Gordon's suggestion, they also spoke with Johnson's father by phone; he told them that he had last spoken with Johnson two weeks before and learned that Johnson was living with his girlfriend in Vancouver, Washington. But he did not know Johnson's address or the girlfriend's name. According to Johnson's father, Johnson 'maintains very limited contact with his family and moves around frequently,' so they usually did not know where to locate him. CP at 25. According to the Cheneys' declaration, Johnson's father was 'very pleasant . . . and seemed willing to provide whatever information he could.' CP at 25.
On April 5, 2004, the superior court authorized service on Johnson by mail.
Motion to Dismiss
On April 5, 2004, Combined Transport moved for dismissal of the claim against it, arguing that the three-year statute of limitations had run and neither Combined Transport nor Johnson had been served within 90 days of the filing of the complaint.
At the May 10, 2004 hearing on the motion, the parties' oral arguments focused on whether service on Combined Transport's Oregon agent was valid. The court took the matter under advisement and the parties filed additional briefing. On May 18, 2004, the trial court granted summary judgment for Combined Transport stating: 'the filing of the complaint is ineffective to toll the statute of limitations and the action is now time barred. {Lewis's} complaint is dismissed with prejudice.' CP at 174-75.
Lewis moved for reconsideration, which the court denied on June 22, 2004. Lewis now appeals.
ANALYSIS
Standard of Review
An order of summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Brown v. ProWest Transp. Ltd., 76 Wn. App. 412, 417, 886 P.2d 223 (1994) (citing Marincovich v. Tarabochia, 114 Wn.2d 271, 274, 787 P.2d 562 (1990)). We consider the facts in the light most favorable to the nonmoving party and will grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion. Marincovich, 114 Wn.2d at 274. Here, we must address whether, viewing the facts in the light most favorable to Lewis, reasonable persons could only conclude that the statute of limitations had run before Lewis effectively served Combined Transport or Johnson.
Statute of Limitations
The statute of limitations is an affirmative defense; the burden is on the party asserting it, here Combined Transport, to prove the facts that establish it. Brown, 76 Wn. App. at 419 (citing Haslund v. Seattle, 86 Wn.2d 607, 547 P.2d 1221 (1976)).
The statute of limitations on personal injury actions is three years. RCW 4.16.080(2). Filing the complaint in superior court tentatively commences the action and gives the court conditional jurisdiction over it. Bethel v. Sturmer, 3 Wn. App. 862, 864, 479 P.2d 131 (1970) (citing State ex rel. Dahl v. Superior Court, 13 Wn.2d 626, 126 P.2d 199 (1
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