No. 19484-1-III.The Court of Appeals of Washington, Division Three. Panel Four.
Filed: October 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Spokane County, No. 97-2-07711-1, Hon. Richard J. Schroeder, July 7, 2000, Judgment or order under review.
Counsel for Appellant(s), Uche H. Umuolo, Attorney At Law, 921 W Broadway Ste 205b, Spokane, WA 99201.
Counsel for Respondent(s), Troy Y. Nelson, 717 W Sprague, Ste 1200, Spokane, WA 99201.
KENNETH H. KATO, J.
Teresa Hemphill sued Craig Martin for damages based on negligence. Mr. Martin’s motion to dismiss for insufficient service of process was granted. Ms. Hemphill appeals. We affirm.
In 1995, Mr. Martin listed his home for sale. On December 18, Ms. Hemphill fell on the stairs while viewing the home.
On December 18, 1997, Ms. Hemphill filed this negligence lawsuit against Mr. Martin. On September 22, 1998, she tried to serve Mr. Martin in Redmond, where he had moved in August 1996. The process server was unable to locate him because he had subsequently moved to Gig Harbor in March 1998.
On March 15, 2000, Mr. Martin was personally served at his present home in Redwood City, California. He then moved for dismissal pursuant to CR 12(b)(4), insufficient service of process. The court granted the motion. Ms. Hemphill filed her complaint on December 18, 1997. Her claim for negligence accrued on December 18, 1995, and was subject to a three-year statute of limitation. RCW 4.16.080(2). At issue is whether she timely made personal service on Mr. Martin.
Under CR 3, a civil action is commenced by service of a copy of the summons and complaint or by filing a complaint. If a complaint is filed where service has not preceded the filing of the complaint, the limitations period is tolled for 90 days for purposes of service on the defendant. Broad v. Mannesmann Anlagenbau, AG, 141 Wn.2d 670, 674, 10 P.3d 371 (2000) (citing RCW 4.16.170; CR 3(a), (b)). If service is not effected by the end of the 90-day period, the action is deemed not commenced for purposes of the statute of limitation. Id.
Ms. Hemphill commenced this action by filing a complaint. To toll the statute of limitation, she had to serve Mr. Martin within 90 days. She failed to do so. Therefore, the action was not commenced until March 2000 when personal service occurred. By then, the statute of limitation had expired.
Ms. Hemphill argues that RCW 4.16.180 tolls the statute of limitation because Mr. Martin was concealing himself in California. RCW 4.16.180
provides:
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 coming, or return of such person into the state, or after the end of such concealment; and if after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limit for the commencement of such action.
Concealment means a `clandestine or secret removal from a known address.’ Caouette v. Martinez, 71 Wn. App. 69, 74, 856 P.2d 725 (1993) (quoting Patrick v. DeYoung, 45 Wn. App. 103, 109, 724 P.2d 1064 (1986), review denied, 107 Wn.2d 1023 (1987), overruled on other grounds by Sidis v. Brodie/Dohrmann, Inc., 117 Wn.2d 325, 815 P.2d 781 (1991)). Willful evasion of process is a necessary element. Brown v. ProWest Transport Ltd., 76 Wn. App. 412, 421, 886 P.2d 223 (1994).
Ms. Hemphill claims Mr. Martin was concealing himself because she was unable to serve him despite several attempts. But the record reflects only one unsuccessful attempt to serve him. Although Mr. Martin moved three times, each move was a job transfer situation. These circumstances do not establish that he was concealing himself to avoid service. RCW 4.16.180
does not toll the statute of limitation.[1]
Ms. Hemphill was required to commence her lawsuit by both filing a complaint and serving Mr. Martin within the three-year statute of limitation. She did not do so. The court properly dismissed her complaint. Affirmed.
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.
WE CONCUR: SWEENEY, A.C.J., SCHULTHEIS, J.