Brandon Welch, Respondent V. City Of Burlington, Petitioner

OCR transcription for search; preserved printed pages are authoritative

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BRANDON WELCH, a single man,
No. 76771-2-
Respondent,

DIVISION ONE
Vv.

ROGER R. BOARDMAN, a single man,

and UNPUBLISHED OPINION

CITY OF BURLINGTON, a
municipal corporation,

FILED: October 22, 2018

Petitioner.

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Defendant, )
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Smit, J. — The city of Burlington (City) seeks discretionary review of the
trial court's order denying its motion for summary judgment and holding that the
City was properly served. Because Brandon Welch did not serve the mayor, the
city clerk, or the mayor's designated agent for acceptance of service, as required
by RCW 4.28.080(2), the trial court erred in denying the City’s motion for
summary judgment. On appeal, Welch presents several alternative legal
theories of personal jurisdiction on which we can affirm the trial court's order
denying summary judgment, including the discovery rule, waiver and estoppel,

and the tolling of the statute of limitations. But, Welch is not able to establish

No. 76771-2-1/2

personal jurisdiction on any of these bases. Therefore, we reverse and direct the
trial court to enter summary judgment in favor of the City.
FACTS

On August 15, 2013, Welch's motorcycle collided with Roger Boardman’'s
car in an intersection in the city of Burlington. In September 2013, Welch sued
Boardman for negligence. In November 2013, the trial court granted partial
summary judgment against Boardman on the issue of liability.

According to a declaration filed by Welch's attorney, in July or August
2015, the attorney e-mailed both an amended complaint and a proposed agreed
order to amend the complaint to Boardman's attorney. The amended complaint
alleged that the City negligently designed and maintained the intersection where
the accident occurred. Boardman’s attorney mailed the proposed order with his
signature to Welch's attorney and Welch’s attorney then secured an order from
the court allowing the amended complaint to be filed. The amended complaint
was filed with the court on August 26, 2015.

On August 31, 2015, Welch served the summons and amended complaint
on the city administrator. The City filed an answer on October 29, 2015, stating,
“Plaintiff has failed to properly serve the Summons and Complaint upon
Defendant City as required by the laws of the State of Washington and therefore
the court has no jurisdiction over the City.” Clerk’s Papers at 80.

On January 18, 2017, the City moved for summary judgment, arguing that
Welch failed to properly serve the mayor or the city clerk, as required by statute,

within the statute of limitations. On January 24, 2017, Welch served the mayor

No. 767771-2-1/3

with the summons and amended complaint at his home address. Welch served
the city clerk with the summons and amended complaint on February 1, 2017.

In opposition to the City’s motion for summary judgment, Welch argued
that summary judgment was not proper for several reasons. First, he argued that
the statute of limitations was tolled by RCW 4.16.170. Second, he argued that
the statute of limitations did not expire because his cause of action against the
City did not accrue until April 2014, when he learned of the negligent design of
the intersection. Third, he argued that he complied with RCW 4.28.080(2)
because the city administrator was designated by the mayor and the city council
to accept “complaints” under Burlington Municipal Code (BMC) 2.08.030. Fourth,
he argued that the City was estopped from asserting insufficiency of service
because the city administrator accepted service in this case and previous cases
without objection. Finally, he argued that the City waived any objection to service
of process because it engaged in discovery before moving for summary
judgment.

The trial court denied the City’s motion for summary judgment because
“service on the city was effectuated when the city administrator was served.” Id.
at 491. The court also held that “there [was] no waiver or estoppel arising from
the City’s actions in such prior cases, as the City alleged insufficiency of service
in its answer in this matter.” Id. The trial court denied the City’s motion for
reconsideration. It then certified the issue of sufficient service of process as

reviewable under RAP 2.3(b)(4). We granted discretionary review.

No. 76771-2-1/4

ANALYSIS

Mayor's Designated Agent for Service of Summons

The City argues that the triai court erred in denying its motion for summary
judgment because the BMC 2.08.030 does not designate the city administrator
as the mayor's agent. We agree and hold that service on the city administrator
cannot be the basis for personal jurisdiction over the City.

The construction of a city ordinance is a question of law reviewed de novo.

Seattle Hous. Auth. v. City of Seattle, 3 Wn. App. 2d 532, 538, 416 P.3d 1280

(2018) (citing Sleasman v. City of Lacey, 159 Wn.2d 639, 642-43, 151 P.3d 990

(2007)). “The same rules of statutory construction apply to the interpretation of
municipal ordinances as to the interpretation of state statutes.” Id. (quoting City

of Seattle v. Green, 51 Wn.2d 871, 874, 322 P.2d 842 (1958)). In interpreting a

statute, this court's fundamental objective is to ascertain and carry out the

legislature's intent. Manary v. Anderson, 176 Wn.2d 342, 350-51, 292 P.3d 96

(2013) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43

P.3d 4 (2002)). “Statutory interpretation begins with a statute’s plain meaning.”
Id. at 352. The plain meaning “is to be discerned from the ordinary meaning of
the language at issue, the context of the statute in which that provision is found,

related provisions, and the statutory scheme as a whole.” State v. Engel, 166

Wn.2d 572, 578, 210 P.3d 1007 (2009). The court may use a dictionary to

discern the plain meaning of an undefined statutory term. Nissen v. Pierce

County, 183 Wn.2d 863, 881, 357 P.3d 45 (2015) (citing HomeStreet, Inc. v.

Dep't of Revenue, 166 Wn.2d 444, 451, 210 P.3d 297 (2009)). In determining

No. 76771-2-1/5

the plain meaning of a statute, the court “must not add words where the

legislature has chosen not to include them.” Rest. Dev., Inc. v. Cananwill, Inc.,

150 Wn.2d 674, 682, 80 P.3d 598 (2003). If the statute is unambiguous, the

court's inquiry is at anend. State v. Armendariz, 160 Wn.2d 106, 110, 156 P.3d

201 (2007).
RCW 4.28.080 provides the method for serving an incorporated city:
Service made in the modes provided in this section is personal
service. The summons shall be served by delivering a copy
thereof, as follows:
(2) If against any town or incorporated city in the state, to the
mayor, city manager, or, during normal office hours, to the mayor's
or city manager's designated agent or the city clerk thereof.
“When a statute designates a particular person or officer upon whom service of

process is to be made in an action against a municipality, no other person or

officer may be substituted.” Meadowdale Neigh. Comm. v. City of Edmonds, 27

Wn. App. 261, 264, 616 P.2d 1257 (1980) (citing 56 Am. JuR. 2D Municipal

Corporations, Counties, and Other Political Subdivisions § 854 (1971); 64 C.J.S.

Municipal Corporations § 2205(c)(3) (1950).

The City does not have a city manager, so under this statute, a party must
serve either the mayor or, during normal office hours, the mayor's designated
agent or the city clerk. The mayor testified that he had “not delegated the
authority to receive service of process on behalf of the City of Burlington to any

City official not specified in RCW 4.28.080(2)."' Clerk’s Papers at 121-22. Here,

1 Welch moved to strike this declaration and other citations in the City’s
opening brief. Because he did not object to the admission of the mayor's
declaration on summary judgment, we deny his motion to strike it on appeal,

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No. 76771-2-1/6

Welch served the city administrator on August 31, 2015. But he did not serve the
mayor or the city clerk until January 2017, after the statute of limitations expired.
On summary judgment, Welch argued that the city administrator is the
mayer’s designated agent under BMC 2.08.030, which states:
It shall be the responsibility and duty of the administrator to:

C. Assist the mayor in day-to-day operations which shall include the
handling of complaints and talking with the public.

M. Investigate and make recommendations to the city council and
mayor on all complaints referred to him/her and or received by
him/her concerning city business.
(Emphasis added.) The trial court interpreted the term “complaints” in section C
above to include a complaint in the legal sense:
Under the handling of complaints | would think that a complaint is a
complaint. And that the city administrator handles complaints. And
he can be the guy you hand the complaint to. And when you do
you've served the City of Burlington.
Report of Proceedings (Feb. 16, 2017) at 26.
Here, there are no genuine issues of material fact. The issue is legal:

whether BMC 2.08.030 designates the city administrator as the mayor’s agent for

accepting a summons under RCW 4.28.080(2). We hold that it does not.

Bonneville v. Pierce County, 148 Wn. App. 500, 509, 202 P.3d 309 (2008) (“Ifa
party fails to object or bring a motion to strike deficiencies in affidavits or other
documents in support of a motion for summary judgment, the party waives any
defects.”) (citing Smith v. Showalter, 47 Wn. App. 245, 248, 734 P.2d 928
(1987)). We also deny Welch's motion to strike the City’s citations to an
unpublished case and the City of Kirkland’s code because the unpublished case
was properly cited and the code is not evidence, but law. See Ellis v. City of
Seattle, 142 Wn.2d 450, 460 n.3, 13 P.3d 1065 (2000) (holding that a fire code
provision cited in an appellate brief but not raised to the trial court could be
considered because it “is not evidence; it is law’).

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No. 76771-2-1/7

BMC 2.08.030 does not include any reference to “service,” “summons,” or
“designated agent’—the key terms in RCW 4.28.080(2). The only term that it
includes is “complaints,” which is not used in RCW 4.28.080(2). “Compiaint” is
not defined in Title 2 of the BMC. But BMC 1.04.030 explains how words in the

code should be interpreted:

All words or phrases shall be construed according to the common
and approved usage of the language, but technical words and
phrases and such others as may have acquired a peculiar and
appropriate meaning in the law shall be construed and understood
according to such peculiar and appropriate meaning.

“Complaint” can have a technical meaning within the law, and its dictionary
definition includes that meaning:

1 aobs: acry or loud utterance or series of utterances of pain,
rage, or sorrow ; grieved or sorrowful outcry b : a formerly popular
poem that laments or protests unrequited love or tells of personal
misfortune, misery, or injustice c : the act or action of expressing
protest, censure, or resentment : expression of injustice... d:
formal allegation or charge against a party made or presented to
the appropriate court or officer (as for a wrong done or a crime
committed) and variously applied (as to the initial bill in
proceedings in equity, the declaration in a common-law pleading,
the statement of claim under the English practice acts, and the
initial pleading under the code practice in various states of the
U.S.) 2 a: something that is the cause or subject of protest or
grieved outcry... b : an ailment or disease of the body.

WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 464 (2002) (emphasis
added). But where the code acknowledges that it will interpret technical terms
based on their peculiar meaning, it is important that BMC 2.08.030 does not use
the technical terms of “summons,” “designated agent” or “service of process.”
Use of the word “complaint” alone does not convey a particular technical

meaning such that the city administrator may accept service of summons on

No. 76771-2-1/8

behalf of the mayor as his designated agent. In fact, the code only states that
the city administrator may “handl[e],” “[i]nvestigate,” and “makje]
recommendations” regarding “complaints.” BMC 2.08.030. None of these terms
are the plain language equivalent of being the mayor's designated agent for
acceptance of service of process on his behalf. Therefore, based on its plain
language, BMC 2.08.030 does not designate the city administrator as the
mayor's agent for purposes of accepting a summons. We hold that service on
the city administrator did not effect personal jurisdiction on the City and that the
trial court erred in holding that it did.

Weich argues that the term “city manager” in RCW 4.28.080(2) is
ambiguous because it is not defined in the statute and, therefore, it could mean
“city administrator.” He bases this argument on the fact that the term is not
capitalized, but he fails to cite any legal authority supporting this interpretation.

Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549

(1992) (arguments that are not supported by any citation to authority need not be

considered) (citing RAP 10.3(a)(5); McKee v. Am. Home Prods. Corp., 113

Wn.2d 701, 705, 782 P.2d 1045 (1989)). But, the plain language of
RCW 4.28.080(2) says service must be on the “mayor,” the “city manager,” or the
“city clerk.” This language is not ambiguous, and we hold that it cannot be
interpreted to include the “city administrator.”

Welch argues that an alternative form of service is acceptable under
RCW 4.28.080(2) because the City is run by part-time officials. He relies on

Skinner v. Civil Service Commission of City of Medina, 168 Wn.2d 845, 853, 232

No. 76771-2-/9

P 3d 558 (2010). But Skinner is distinguishable. In that case, the issue was

whether or not Skinner properly served the City of Medina Civil Service

Commission with the notice of an appeal under RCW 41.712.090, which states:
Such appeal shall be taken by serving the commission, within thirty
days after the entry of such judgment or order, a written notice of
appeal, stating the grounds thereof, and demanding that a certified
transcript of the record and of all papers on file in the office of the

commission affecting or relating to such judgment or order, be filed
by the commission with such court.

(Emphasis added.) The Supreme Court determined that Skinner substantially
complied with this statute by leaving copies of the notice of appeal with the city
clerk. Id. at 856. It held that “where the Commission’s office address (at which a
notice of appeal must be served) contains no office or Commission staff and the
municipality is relatively small, .. . Skinner’s service on the city clerk, located at
that address, was reasonably calculated to give notice to the Commission.” Id.
Here, the statute at issue is RCW 4.28.080(2), not RCW 41.12.090. In
Meadowdale, this court explicitly held that substantial compliance is not enough
to satisfy RCW 4.28.080(2). Meadowdale, 27 Wn. App. at 264 (“When a statute
designates a particular person or officer upon whom service of process is to be

made in an action against a municipality, no other person or officer may be

substituted.”) (citing 56 Am. Jur. 2d Municipal Corporations, Counties, and Other

Political Subdivisions § 854 (1971); 64 C.J.S. Municipal Corporations §

2205(c)(3) (1950)}. “[T}he doctrine of substantial compliance is inapplicable
when the issue is whether service of process has been valid so as to subject a

municipality to the court’s jurisdiction.” 1d.

No. 7677 1-2-1/10

Furthermore, the Supreme Court distinguished RCW 4.28.080(2) from

another service statute, RCW 10.95.040, in State v. Clark, 129 Wn.2d 805, 920

P.2d 187 (1996). That case involved service of a death penalty notice. Id. at
810. The defendant argued that personal service under RCW 4.28.080 was
required, but the Supreme Court disagreed. Id. at 813. It distinguished cases
involving that statute, including Meadowdale, and held that because

RCW 10.95.040 did not require “personal” service and because RCW 4.28.080
applied to service of original process, those cases were not persuasive. Id. at
813-14.

The same reasoning can be used to distinguish Skinner from this case.

RCW 41,12.090, the statute at issue in Skinner, does not require personal

service, and it does not apply to service of original process. Therefore, the

Supreme Court's holding in Skinner is not binding on this court’s application of

RCW 4.28.080(2).

In its amicus curiae brief, the Washington State Association of Municipal
Attorneys argues that RCW 4.28.080(2) should be interpreted to allow only the
mayor and not the city council to designate an agent who can accept service of
summons on the mayor's behalf. Under this argument, the council, in passing
BMC 2.08.030, did not have the authority to designate the city administrator as
the mayor's agent. Because we hold that the plain language of BMC 2.08.030
does not designate the city administrator as the mayor's agent for accepting

service of a summons, we need not reach this argument.

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No. 76771-2-1/11

In conclusion, Welch did not obtain personal jurisdiction over the City
within the statute of limitations by serving the city administrator rather than the
mayor or the city clerk, as required by RCW 4.282.080(2). The trial court erred in
concluding that BMC 2.08.030 designated the city administrator as the mayor's
agent for acceptance of a summons, and remand is necessary.

The Discovery Rule

Welch argues that he served the mayor and the city clerk within the
statute of limitations because his negligence claim against the City did not accrue
until he discovered defects in the road design through an expert's report. We
disagree.

“The general rule in ordinary personal injury actions is that a cause of

action accrues at the time the act or omission occurs.” Funkhouser v. Wilson, 89

Wn. App. 644, 666, 950 P.2d 501 (1998) (quoting In re Estates of Hibbard, 118

Wn.2d 737, 744, 826 P.2d 690 (1992)), affd in part and remanded sub nom.

C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 985 P.2d 262

(1999). But, as an exception to this rule, the discovery rule can apply when a
delay occurs between the time of an injury and the plaintiff's discovery of that

injury. Giraud v. Quincy Farm & Chem., 102 Wn. App. 443, 449, 6 P.3d 104

(2000) (citing Crisman v. Crisman, 85 Wn. App. 15, 20, 931 P.2d 163 (1997)).

The discovery rule tolis the date of accrual of the action “until the plaintiff knows
or, through the exercise of due diligence, should have known all the facts
necessary to establish a legal claim.” Id. (citing Crisman, 85 Wn. App. at 20;

Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992)). But, the discovery

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No. 76771-2-1/12

rule is not based on a plaintiff's knowledge of the existence of a specific legal
cause of action because that would effectively toll the statute of limitations until

the injured person saw his attorney. Gevaart v. Metco Const., Inc., 117 Wn.2d

499, 502, 760 P.2d 348 (1988) (adopting the Court of Appeals’ unpublished

opinion, Gevaart v. Metco Constr., Inc., noted at 48 Wn. App. 1034 (1987), as its

own).

Here, Welch received an expert report on April 25, 2014, indicating that
the intersection where the accident occurred provided a line of sight that was
below safety standards. Welch argues that his cause of action against the City
did not accrue until he received this expert analysis. Under this theory, the
statute of limitations in a negligence action could always be tolled until the
plaintiff meets with an expert that advises a cause of action is available. On
appeal, Welch cites no authority supporting such an extension of the statute of
limitations in personal injury cases, and we decline to extend one here. See

Cowiche Canyon Conservancy, 118 Wn.2d at 809 (arguments that are not

supported by any citation of authority need not be considered) (citing
RAP 10.3(a)(5)).
In response to the City's motion for summary judgment below, Welch cited

1000 Virginia Ltd. Partnership v. Vertecs Corp., 158 Wn.2d 566, 146 P.3d 423

(2006) for support of his discovery rule argument. But that case involved iatent
defects in a construction project that were not discovered within the statute of
limitations for a breach of contract action. There, the issue was whether

“application of the discovery rule in construction contract cases involving latent

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No. 76771-2-1/13

defects that the plaintiff would be unable to detect at the time of breach is a
logical and desirable expansion of the discovery rule.” Id. at 578-79. That case
is inapplicable in this context and is not a basis for extending the statute of
limitations here. Welch's discovery rule argument fails.

Equitable Estoppel

Welch argues that the City is estopped from arguing that it was not
properly served because the city administrator accepted service of process in
this case and in past cases. We disagree.

“The elements of estoppel are: (1) an act or admission by the first party
that is inconsistent with a later assertion; (2) an act by another party in reliance
upon the first party’s act or assertion; and (3) an injury that wouid result to the
relying party if the first party were not estopped from repudiating the original act.”

Davidheiser v. Pierce County, 92 Wn. App. 146, 153, 960 P.2d 998 (1998) (citing

Kramarevcky v. Dep't of Soc. & Health Servs., 122 Wn.2d 738, 743, 863 P.2d

535 (1993); Robinson v. City of Seattle, 119 Wn.2d 34, 82, 830 P.2d 318 (1992)).

“The party asserting estoppel must show not only lack of knowledge of the facts,
but also the absence of any convenient and available means of acquiring such

knowledge.” Id. (citing Chem. Bank v. Wash. Pub. Power Supply Sys., 102

Wn.2d 874, 905, 691 P.2d 524 (1984)}).

Davidheiser is instructive here. in that case, the Court of Appeals
considered whether Pierce County could be estopped from asserting
insufficiency of service of process where an employee incorrectly told the plaintiff
that the Risk Management Department could accept a summons and complaint.
id. at 152-53. Under RCW 4.28.080(1), service of summons could be made only

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No. 76771-2-1/14

on the county auditor, the deputy auditor, or an agent designated by legislative
authority, not the county’s Risk Management Department. Id, at 150. Relying on
Meadowdale, the court explained that service on anyone other than the
individuals identified in the statute was insufficient because the statute was clear
who should be served. Id. at 153-54. The court held that

even if Davidheiser could have reasonably relied on the

representation to serve the summons and complaint on the Risk

Management Department, such reliance was no longer reasonable

after the County served its answer asserting that service was

improper. Because the defense was raised within the statute of

limitations, Davidheiser could have properly served the County

pursuant to RCW 4.28.080(1) within the statutory period.

id. at 154-55,

Here, as in Davidheiser, RCW 4.28.080(2) clearly states that the mayor or
the city clerk must be served and the City asserted in its answer that service was
insufficient. Because Welch had notice of the City’s defense before the statute of
limitations expired, he could have properly served the City within the statutory
period. Estoppel is not a basis for denying summary judgment.

Without any citation to legal authority, Welch argues that the City is
estopped from raising the defense of insufficient service because it engaged in

discovery on other issues before moving for summary judgment on the issue of

service. He is mistaken. In French v. Gabriel, 116 Wn.2d 584, 594, 806 P.2d

1234 (1991), the Supreme Court held that once the defendant properly preserved
his defense of insufficiency of process by pleading it in his answer, he did not
waive it by proceeding with discovery on unrelated issues. Id. (citing Crouch v.

Friedman, 51 Wn. App. 731, 734-35, 754 P.2d 1299 (1988)); see aiso

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No. 76771-2-1/15

Davidheiser, 92 Wn. App. at 155-56. Therefore, the City did not waive the
insufficient service defense by engaging in discovery on other issues.

Finally, Welch argues that the City is estopped from arguing that there
was insufficient service of process because the city administrator was an
apparent agent for the mayor and the mayor is bound by the city administrator's
acceptance of service on his behalf. This argument is at odds with the plain
language of RCW 4.28.080(2) and Meadowdale, as described above. Welch's
attempt to reframe the issue under agency law does not require a different result
and his waiver and estoppel arguments fail.

Tolling of the Statute of Limitations

Welch argues that the City was properly served within the statute of
limitations because the statute of limitations was tolled under RCW 4.16.170
when he e-mailed the amended complaint to Boardman’s attorney prior to filing it
with the court. We disagree.

This court reviews the sufficiency of service de novo. Streeter-Dybdahl v.

Nguyet Huynh, 157 Wn. App. 408, 412, 236 P.3d 986 (2010). The plaintiff bears
the burden of making a prima facie case of sufficient service of process. Id.
The statute of limitations for an action may be tolled under

RCW 4.16.170.4 Based on that statute, service on any one of multiple

2 RCW 4.16.170 states:

For the purpose of tolling any statute of limitations an action
shall be deemed commenced when the complaint is filed or
summons is served whichever occurs first. If service has not been
had on the defendant prior to the filing of the complaint, the plaintiff
shall cause one or more of the defendants to be served personally,
or commence service by publication within ninety days from the

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No. 76771-2-1/16

defendants tolls the statute of limitations against all the defendants. Sidis v.

Brodie/Dohrmann, Inc., 117 Wn.2d 325, 329, 815 P.2d 781 (1991).

CR 15(a) states that “[i]f a motion to amend is granted, the moving party
shall thereafter file the amended pleading and, pursuant to rule 5, serve a copy
thereof on ail other parties.” The Court of Appeals has interpreted CR 15 to
require that the moving party serve the amended complaint on the opposing

party after the court grants leave to amend. Will v. Frontier Contractors, Inc., 121

Wh. App. 119, 127, 89 P.3d 242 (2004) (citing Carter v. Church, 791 F. Supp.

297, 298 (M.D. Ga. 1992); Murray v. Archambo, 132 F.3d 609, 612 (40th Cir.

1998)).

Here, the only evidence of service of the amended complaint on
Boardman in this record comes from a declaration by Welch's attorney, which
states:

| then delivered the draft amended complaint to counsel for Mr.

Boardman, who | provided with a proposed agreed order. To my

recollection, counsel for Mr. Boardman mailed me the order with his

signature. Following receipt of that document | secured an order
from the court allowing the amended complaint to be filed. | then

filed the amended complaint with the court, in August 2015.

Clerk’s Papers at 303. This declaration states that Boardman’s attorney was

“provided” the draft amended complaint before the court granted leave to amend.

date of filing the complaint. !f the action is commenced by service
on one or more of the defendants or by publication, the plaintiff
shall file the summons and complaint within ninety days from the
date of service. If following service, the complaint is not so filed, or
following filing, service is not so made, the action shall be deemed
to not have been commenced for purposes of tolling the statute of
limitations.

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No. 76771-2-1/17

But, there is no evidence in the record that Welch served the amended complaint
on Boardman after it was filed, as required by CR 15(a). Even speculating that
filing the amended complaint could toll the statute of limitations, Welch has the
burden to show that the amended complaint was properly served on Boardman
in order to effectuate tolling. He has not done so. Therefore, the tolling statute
cannot be a basis for extending the statute of limitations until the City was
properly served.

In conclusion, we reverse the trial court’s order on summary judgment and
direct the trial court to enter summary judgment in favor of the City.

Anal Ce.

WE CONCUR:

WM, bow ACT. Aeack.

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