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Lewis v. Combined Transport9/13/2005
emeal').
Lewis relies on RCW 4.28.185(6) which states that '{n}othing herein contained limits or affects the right to serve any process in any other manner now or hereafter provided by law.' He argues that this provision allows him to personally serve Combined Transport under RCW 4.28.180 without satisfying the requirement under RCW 4.28.185(4) that an affidavit be filed stating that service cannot be made in Washington. He argues that the absence of the affidavit required under RCW 4.28.185(4) does not defeat service but only limits its effect to that of service by publication. We disagree.
The legislature enacted RCW 4.28.180 and RCW 4.28.185 (in substantially its current form) in 1959 as part of the same act. We therefore read the two together. RCW 4.28.180 addresses the effect of personal service of process on parties outside the state of Washington: When the person personally served has submitted to the jurisdiction of the courts of this state, such service 'shall have the force and effect of personal service within this state; otherwise it shall have the force and effect of service by publication.' But RCW 4.28.185(4) establishes a condition precedent to personally serving a party not within the territorial jurisdiction of Washington courts. Such condition must be satisfied before the method of service specified in RCW 4.28.185(2) and RCW 4.28.180 may be used effectively. Lewis did not file the affidavit RCW 4.28.185(4) required and his personal service on Combined Transport's Oregon registered agent outside of Washington was invalid. Based on Lewis's invalid service, Washington courts did not obtain personal jurisdiction over Combined Transport.
Tolling of Statute of Limitations
Lewis also contends that Johnson's concealing himself to avoid service of process extended the statute of limitations on his claim against Combined Transport and Johnson. Again, we disagree.
Lewis correctly states that the running of the statute of limitations may be tolled during periods in which a resident defendant is absent from the state or has concealed himself within the state. RCW 4.16.180 states: If the cause of action shall accrue against any person who is a nonresident of this state, or who is a resident of this state and shall be out of the state, or concealed therein, such action may be commenced within the terms herein respectively limited . . . after the end of such concealment; and if after such cause of action shall have accrued, such person shall . . . conceal himself, the time of his . . . concealment shall not be deemed or taken as any part of the time limit for the commencement of such action.
For purposes of addressing Lewis's argument, we will assume that Johnson had been concealing himself to avoid process and that the court had the authority to toll the statute of limitations to allow Lewis additional time to attempt to serve him. These assumptions, however, do not assist Lewis because Lewis did not ask the court to authorize alternative service on Johnson until March 31, 2004, 23 days after the statute of limitations had run.
Because the statute of limitations had run before any defendant was validly served, the trial court properly dismissed Lewis's claims with prejudice.
Dismissal with Prejudice
Finally, Lewis contends that even if the statute of limitations had run, dismissal of his claims with prejudice was improper.
In support of his argument, Lewis cites Oregon Revised Statute 12.220: {I}f an action is filed with a court within the time allowed by statute, and the action is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action
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