Opinion
No. 33582-4-II.
August 22, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-05690-3, Katherine M. Stolz, J., entered August 17, 2005.
Counsel for Appellant(s), Colleen Mulvihill Edwards (Appearing Pro Se), Port Orchard, WA.
Counsel for Respondent(s), Timothy Lee Ashcraft, Williams Kastner Gibbs, Tacoma, WA.
John A. Rosendahl, Williams Kastner Gibbs PLLC, Tacoma, WA.
Kathleen F. Cochran, Kingman, Peabody, Fitzharris, Ringer P, Seattle, WA.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Van Deren, A.C.J., and Hunt, J.
Colleen Mulvihill Edwards appeals the trial court's dismissal of her civil action against Tacoma General Hospital; MultiCare Health Services, Inc.; Dr. Donald Fletcher, D.O.; and Johanes Johnson, R.N. for insufficiency of process and its denial of her motion for reconsideration. She argues that the trial court erred when it: (1) found that she was properly served with the defendants' motions to dismiss; (2) insisted that she disclose her physical address, which she asserts was protected information; (3) granted the defendants' motions to dismiss; and (4) failed to accommodate her physical disability and illness by granting her more time to respond to the motions to dismiss. We affirm.
Facts
On March 8, 2002, Edwards received medical care at the Tacoma General Hospital (TGH) emergency room. Almost three years later, on March 4, 2005, Edwards filed a pro se action against TGH; MultiCare Inc.; `Johanes Johnson, R.N.,' later identified as Johansen; an unnamed physician, later identified as Fletcher; and two unnamed security guards, asserting claims for medical malpractice and negligence, personal injury, assault and battery, and deprivation of civil rights. The only address Edwards provided in the summons and complaint was `3377 Bethel Road SE, Suite 107, PMB 334, Port Orchard, Washington, 98366.' Clerk's Papers (CP) at 3, 11. The address later proved to be to a private mailbox at The UPS Store in Port Orchard, Washington. Nothing in the summons or complaint stated that Edwards believed her physical address was protected information.
On March 21, 2005, Edwards filed four declarations of service with the trial court. These declarations stated that on March 15, 2005, at 4:23 p.m., a registered process server had served copies of the summons and complaint on Fletcher; Johansen; TGH; and MultiCare by delivering the documents to C.F. Peavley, a security guard `who is an authorized representative for acceptance of service on behalf of' the named parties. CP at 12-15, 18-19. Charles Peavley was a security guard for MultiCare.
On March 30, 2005, counsel for TGH, MultiCare, and Johansen (collectively referred to as the Hospital), filed a notice of appearance. On May 2, 2005, Fletcher's counsel filed a notice of appearance, reserving objection as to improper service or jurisdiction. On June 9, 2005, Fletcher and the Hospital filed separate CrR 12(b)(5) motions to dismiss, asserting insufficient service of process and that the statute of limitations on Edwards' claims had run. They noted the hearing on the motion for June 17, 2005.
At the June 17 hearing, Fletcher and the Hospital argued that service was inadequate under RCW 4.28.080(9) and (15). The trial court then asked Edwards why she had not filed a response to the defendants' motions. Edwards asserted that she did not receive the motions until June 10, and that due to her ongoing medical problems, she was unable to respond within the `two days' allowed under the local rules. Report of Proceedings (RP) (June 17, 2005) at 4. She also objected to the motions being `served' at a `UPS box holder.' RP (June 17, 2005) at 4.
When the trial court responded that she had waived her objection to service of the motions because they were delivered to the only address she provided to opposing counsel, Edwards informed the court that she needed to keep her physical address out of the public record due to various anti-harassment or protection orders. She then offered to provide a physical address to opposing counsel if there was a way of doing so that would keep it out of the public record.
The trial court did not comment on Edwards' offer but stated that the motions to dismiss should be granted because records before it established that service had not been perfected and that the statute of limitations had expired. Edwards objected, arguing that although the documents were not in the record, she had documentation from the process server demonstrating that he was directed to serve the security guard. The trial court responded:
Well, if the corporation has an individual that is authorized and listed with the Secretary of State to accept service it's your responsibility to serve that person. You just don't serve a security guard and expect that you're perfecting service. You didn't get proper service under the law and that's it. This isn't the kind of issue where there are any mitigating circumstances and the court can't under the case law give sympathy if you don't do it right. You are representing yourself and you're held to the same standards as an attorney. As I said I've had attorneys down here in the same position. Some have waited until the end of the Statute of Limitations and come into their office and file their case but didn't perfect service on the appropriate individuals, and that's it, it's over.
RP (June 17, 2005) at 6-7. The trial court also reiterated that it was rejecting her assertion that she was not properly served with the motions to dismiss. The trial court granted the defendants' motions to dismiss.
Some time on June 17, apparently after the motion hearing, Edwards filed a document entitled `MOTION REQUESTED RULING FOR ACCOMMODATION OF DISABILITIES Under federal and state Statues [sic] Case Law,' and several attachments. CP at 49-65. In this motion, Edwards asserted that she was physically disabled due to head and spinal injures, seizures, fatigue, and vision loss. She further stated that in previous court proceedings she had received a variety of accommodations from the trial and appellate courts to allow for her medical conditions including: (1) rescheduling or continuing court proceedings to accommodate her in the event of a seizure or the need for medical treatment; (2) a variety of time accommodations during the proceedings; and (3) allowing her additional time, sometimes up to two full weeks, to respond or reply to the opposing party to accommodate transportation and scheduling issues. She also attached a form from Harrison Memorial Hospital suggesting that she had been at the hospital on June 15, 2005, after suffering a seizure. But Edwards did not request any specific accommodation in the June 17 motion.
The motion is date stamped June 17, 2005. But Edwards commented at the hearing that some of the attached documents were not in the record at the time of the hearing, and the trial court did not discuss this motion or the attached documents at the hearing or refer to them in its written orders. This suggests that Edwards filed these items after the hearing.
Edwards' June 17 motion also advised the trial court that her physical address was confidential under chapters 10.14, 26.09, 26.50 RCW, and that she therefore received her mail at the Port Orchard address she had provided to the defendants. She further asserted that this address `cannot accept personal service of any communications, accept by first class mail, certified mail or UPS shipping,' once again implying that she was not properly served with the motions to dismiss. CP at 51.
Finally, although nothing in the June 17 motion addressed whether the defendants had been properly served, Edwards appears to have also attached several documents from NW Legal Support, Inc. regarding service on `Johanes Johnson, R.N.'; `John Doe, MD'; and MultiCare. CP at 58-59, 60-65. The documents related to service on `Johnson' showed that when the process server originally attempted to serve the summons and complaint at 737 South Fawcett in Tacoma, Washington, a receptionist informed him that all legal documents had to be served at the `main . . . campus' `w/security guards' and not at the South Fawcett address. CP at 56. The South Fawcett address was crossed out and an address on Martin Luther King, Jr. Way was written in. The documents related to service on MultiCare and `John Doe, MD' also originally contained the South Fawcett address, but that address was crossed out and the comments sections included the following notation, `Serve in patient billing, records legal Dept.' CP 62, 64.
The notation read: `Per Lisa Calderon, receptionist, all legal docs must be served w/security guards main campus'; `Cannot serve 737; can only serve security main Tac Gen. campus.' CP at 56.
After the trial court granted the motions to dismiss, Edwards moved for reconsideration, arguing that the documents from NW Legal Support, Inc. demonstrated that the process server had `made diligent attempts' to serve TGH, MultiCare, Johansen, and Fletcher on March 15, 2005, and that he was specifically directed to serve the documents on the security guard, `an authorized' representative for acceptance of service on behalf of Johnson, TGH, Fletcher, and MultiCare. CP at 76-78. She further asserted that the documents were ultimately served on `a person who claimed to be authorized to accept service and did so personally accept such service by hand a copy of all documents' and that the process server could not have proceeded further because hospital security would not allow it. CP at 78-79. Notably, none of the documents from the process server that Edwards filed stated that he attempted to serve anyone other than the security guard at the Martin Luther King, Jr. Way address or that the security guard prevented him from doing so.
In addition, Edwards again claimed that the defendants had not properly served her with the motions to dismiss. She claimed that although the defendants' motions were delivered to the Port Orchard address on June 9, and she picked up the documents on June 10, she was not properly served because the Port Orchard address could accept only first class and certified mail, not personal service. In support of this argument, she provided a letter from the manager who had accepted the documents at The UPS Store. Edwards also attached a copy of the Mailbox Service Agreement.
This letter, dated June 28, 2005, stated:
Two weeks ago, 2 separate gentlemen hurried into The UPS Store, on the same day, which I believe to be June 16th, with legal papers for Colleen Edwards.
I told them I could not accept the paperwork if they were subpoena's for any of our PMB's (Personal Mailbox holders). Both men assured me that they were only legal papers from lawyers for a case that Colleen was the plaintiff, leading me to believe they were from her lawyers. Also, the reason for the hand delivery was because the set court date was only a few days away and that they did not have time to mail them, as the mail service has no guaranteed delivery date.
I looked at the papers and assessed that she was the plaintiff, the address on the form was at this location, and that the date specified was in this month of June before I accepted them. I determined that Colleen Edwards needed them immediately and US Postal service might be too late.
Colleen arrived the next day, June 17th, and picked up both legal documents and asked me how they were delivered.
Today, June 28th, Colleen came to me and explained that they should have been sent certified mail so that she had a `Proof of Delivery' date to show that the court date was being rushed.
CP at 127.
The only relevant provision appears to be item number 11, which states in part: `As Customer's authorized agent for receipt of mail, the Center will accept all mail, including registered, insured and certified items. Unless prior arrangements have been made, the Center shall only be obligated to accept mail, or packages delivered by commercial courier services that require a signature from the Center as a condition of delivery.' CP at 130. We note that although this provision establishes that The UPS store was not obligated to accept items not enumerated in the provision without prior arrangements being made, it does not prohibit the store from choosing to do so.
On July 5, 2005, Edwards filed a letter entitled: `NOTICE TO ALL PARITIES [sic] REGARDING PERSONAL SERVICE' asking trial court and parties to respect the need to keep her physical address confidential due to various restraining and anti-harassment orders. CP at 112. The notice further stated that she would accept personal service through the Kitsap County Sheriff only and that certified, first class, and overnight mail would be accepted at the Port Orchard address she had already provided.
In addition to these motions and supporting documents, Edwards filed various medical documents and a copy of an opinion issued by this court in a prior dissolution action referring to the restraining order issued in her dissolution decree and the need to accommodate her medical conditions throughout the dissolution proceedings.
See In re Marriage of Edwards, 123 Wn. App. 1054, 2004 Wash. App. LEXIS 3283 (2004).
The trial court heard the motion for reconsideration on July 29, 2005. At the hearing, Edwards argued that (1) the defendants had attempted to avoid service, so her service on the security guard was proper; (2) the defendants' motions to dismiss were not properly served; and (3) the trial court had failed to accommodate her under the Americans with Disabilities Act. She also appeared to assert that the defendants waived any defect in service by not objecting in their initial answers, that the address she had provided in her summons and complaint was not authorized to accept hand delivered legal documents, and that because her physical address was protected information the only way the defendants could have properly served her was `through law enforcement.' RP (July 29, 2005) at 9, 11.
Specifically, she argued:
Tacoma General MultiCare did not object to a timely response in their initial answer to the pleadings. So, I would say this case has been served. And, the CR-12 motion that was addressed can later be addressed in trial so there is a message in this court to accommodate the defense's wishes at a later time.
RP (July 29, 2005) at 9.
In response, the defendants argued that Edwards failed to state the basis for her CR 59 motion or show how the trial court had erred in its prior ruling and that her motion for reconsideration was in effect a motion to extend time to respond to the motions to dismiss. They also argued that they had not waived their right to object to service by failing to raise their issue in their answers because they filed their motions to dismiss in lieu of answers. As to Edwards' claim that she had not been properly served with the motions to dismiss, the defendants asserted that her objections had no merit because they attempted to serve her at the only address she provided and that she was confusing the rules for service of original process with the rules for serving subsequent motions. In addition to responding to Edwards' arguments, the defendants moved to strike various documents Edwards had submitted after the June 17 motion hearing, arguing that these documents were inadmissible.
As it had in its previous ruling, the trial court found that Edwards had been properly served because the defendants had served the motions to dismiss at the only address Edwards supplied, that service on the security guard was inadequate, and that Edwards' disabilities did not excuse her from complying with the court rules. The trial court then denied the motion for reconsideration. The trial court did not address the defendants' motions to strike.
Edwards appeals.
ANALYSIS
I. Service on Edwards
Edwards argues that the trial court erred when it found that the defendants had properly served her with their motions to dismiss because the motions were hand delivered to someone not authorized to accept them. We disagree.
Edwards also appears to assert that TGH waived its insufficiency of process claim by failing to raise it in its notice of appearance. This argument has no merit.
A defendant waives a defense of insufficient service of process unless the defendant asserts such a claim either in a responsive pleading or in a motion under CR 12(b)(5). French v. Gabriel, 57 Wn. App. 217, 220, 788 P.2d 569 (1990), aff'd, 116 Wn.2d 584 (1991). A party may also waive this defense by (1) dilatory conduct or (2) conduct inconsistent with asserting the defense. Lybbert v. Grant County, 141 Wn.2d 29, 38-39, 1 P.3d 1124 (2000). Merely filing a notice of appearance does not waive this defense. Gerean v. Martin-Joven, 108 Wn. App. 963, 973, 33 P.3d 427 (2001) (citing CR 4(d)(5); Adkinson v. Digby, Inc., 99 Wn.2d 206, 210, 660 P.2d 756 (1983); Crouch v. Friedman, 51 Wn. App. 731, 735, 754 P.2d 1299 (1988)).
Here, the defendants clearly asserted their insufficient service of process claims in a CR 12(b)(5) motion and nothing in the record suggests that they engaged in dilatory conduct or any conduct inconsistent with their asserted defense. Thus, Edwards fails to show that they waived this defense.
After a party has commenced an action, CR 5(b) provides for the service of all subsequent motions. CR 5(b)(1) provides that service of motions on a party `shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, filing with the clerk of the court an affidavit of attempt to serve.' Edwards is correct that CR 5(b)(1) does not provide for hand delivery to a private mailbox, but this is not dispositive.
RCW 4.28.080's service requirements apply only to service of the summons, not to service of all subsequent pleadings in a case.
CR 5(b)(1) defines delivery of a copy as:
[H]anding it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
CR 5(b)(2)(A) establishes how service by mail is achieved:
If service is made by mail, the papers shall be deposited in the post office addressed to the person on whom they are being served, with the postage prepaid. The service shall be deemed complete upon the third day following the day upon which they are placed in the mail, unless the third day falls on a Saturday, Sunday or legal holiday, in which event service shall be deemed complete on the first day other than a Saturday, Sunday or legal holiday, following the third day.
Under CR 5(b)(7), a party may consent in writing to other means of service. Additionally Pierce County Local Rule (PCLR) 11(a) provides: `A party appearing pro se shall state on the pleadings, notice of appearance, and other documents filed, the person's telephone number, mailing address and street address where service of process and other papers may be served.' (Emphasis added). Here, Edwards provided only one address in her pleadings and did not specifically state that the address was to a private mailbox. Furthermore, nothing in her pleadings suggested that she was not providing her actual physical address to keep that information confidential. Given these facts, particularly in light of PCLR 11(a), we agree with the trial court that by presenting her address in this manner Edwards consented to having documents served at the address she provided. Accordingly, this argument fails.
CR 5(b)(7) provides:
Service by Other Means. Service under this rule may be made by delivering a copy by any other means, including facsimile or electronic means, consented to in writing by the person served. . . . Service by other consented means [, other than by facsimile or electronic means,] is complete when the person making service delivers the copy to the agency designated to make delivery. Service under this subsection is not effective if the party making service learns that the attempted service did not reach the person to be served.
(Emphasis added.)
II. Non-Disclosure of Physical Address
Edwards next appears to argue that the trial court erred by requiring her to provide her physical address in violation of chapters 10.14, 26.09, and 26.50 RCW. This argument is not supported by the record. At no point did the trial court require Edwards to disclose her physical address. Furthermore, under CR 5(b)(7) she was free to arrange for other methods of service that would not require her to reveal her physical address. Thus, this argument also fails.
III. Dismissal
Edwards next contends that the trial court erred by granting the defendants' motions to dismiss. She appears to argue that the trial court erred by failing to (1) take evidence in a `live hearing' before ruling on the motion to dismiss; (2) find that she had proven that the process server had exercised due diligence and defendants' actions constituted avoidance of service; or (3) find that service on the security guard constituted actual service of John Doe 2, a security guard, and John Doe 3, a security guard.
A. Standard of Review
We review de novo a trial court's dismissal of an action on legal grounds. Witt v. Port of Olympia, 126 Wn. App. 752, 757, 109 P.3d 489 (2005) (citing Brundridge v. Fluor Fed. Servs., Inc., 109 Wn. App. 347, 352, 35 P.3d 389 (2001)). `When a defendant moves to dismiss based upon insufficient service of process, `the plaintiff has the initial burden making a prima facie showing of proper service.'' Witt, 126 Wn. App. at 757 (quoting Karl B. Tegland, 14 Wash. Prac., Civil Procedure sec. 4.40, at 108 (2004)). `A plaintiff may make this showing by producing an affidavit of service that on its face shows that service was properly carried out.' Witt, 126 Wn. App. at 757 (citing 14 Wash. Prac. sec. 4.40, at 108 (2004); State ex rel. Coughlin v. Jenkins, 102 Wn. App. 60, 65, 7 P.3d 818 (2000); Woodruff v. Spence, 88 Wn. App. 565, 571, 945 P.2d 745 (1997)). If the plaintiff makes this showing, the burden then shifts to the defendant to prove by clear and convincing evidence that service was improper. Witt, 126 Wn. App. at 757 (citing Coughlin, 102 Wn. App. at 65; Woodruff, 88 Wn. App. at 571; Leen v. Demopolis, 62 Wn. App. 473, 478, 815 P.2d 269 (1991)).
B. `Live' Hearing
Edwards argues that the trial court erred by not holding a `live' hearing to determine whether the process server exercised due diligence and whether the defendants' actions amounted to avoidance of process. Even though Edwards appears to assert that the trial court should have taken `live' evidence, her argument actually focuses on the trial court's failure to consider the documents she submitted after the June 17 hearing. Because we determine below that dismissal was appropriate even considering the evidence Edwards presented after the June 17 hearing, we do not reach this issue.
C. Due Diligence and Avoidance of Service
Edwards argues that the trial court erred by refusing to consider the process server's notes and that these notes establish that the process server exercised due diligence in attempting to serve the defendants in two different locations and that the defendants' action of directing him to serve the security guard amounted to avoidance of service. Because Edwards presented no evidence before and after the hearing that shows diligence, avoidance of service, or proper service, the trial court did not err when it granted the defendants' motions to dismiss.
The trial court applied a three-year statute of limitations to Edwards' claims. Edwards filed her claims four days before the three-year statute of limitations expired without first serving any defendant. Accordingly, the statute of limitations was tolled, and the action would have been deemed to have commenced on the day she filed the complaint if she had personally served the defendants or commenced service by publication within 90 days of filing the complaint.
All of the parties appear to accept that the three-year statute of limitations applies here.
RCW 4.16.170. The record establishes that Edwards did not attempt to commence service by publication, so we need only address whether she personally served the defendants within the 90-day tolling period.
RCW 4.16.170 provides:
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 date of filing the complaint. If 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.
1. Fletcher
To personally serve Fletcher, Edwards had to comply with RCW 4.28.080(15). RCW 4.28.080(15) requires that the defendant be served `personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.' Even considering all the evidence Edwards submitted, she fails to make a prima facie showing that she complied with RCW 4.28.080(15).
At best, the evidence shows that the process server attempted to serve Fletcher at his apparent place of employment and that the process server was directed by hospital staff to serve the security guard. Edwards presented no evidence that she or the process server ever attempted to locate Fletcher in person or his house of usual abode. Nor does the evidence show that Fletcher ever personally authorized service on the security guard.
Furthermore, even if Edwards exercised reasonable diligence in attempting to personally serve Fletcher, she failed to meet the substitute service rules of RCW 4.28.080(16). RCW 4.28.080(16) provides:
In lieu of service under subsection (15) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, `usual mailing address' shall not include a United States postal service post office box or the person's place of employment.
Again, Edwards established only that the summons and complaint were served at Fletcher's apparent place of employment; she does not show that the summons and complaint were left at or mailed to Fletcher's `usual mailing address,' and the statute specifically excludes a person's place of employment from the definition of `usual mailing address.'
Finally, to the extent Edwards is arguing that Fletcher attempted to avoid service, the fact hospital staff may have directed the process server to serve the documents on the security guard does not show any intent by Fletcher to avoid personal service. Accordingly, considering all of the evidence Edwards presented before and after the June 17 motion hearing, she fails to establish service on Fletcher, and the trial court did not err in granting his motion to dismiss.
2. The Hospital
To serve the Hospital, Edwards had to comply with RCW 4.28.080(9). RCW 4.28.080(9) provides that service must be made to:
the president or other head of the company or corporation, the registered agent, secretary, cashier or managing agent thereof or to the secretary, stenographer or office assistant of the president or other head of the company or corporation, registered agent, secretary, cashier or managing agent.
Again, the documentation provided by Edwards both before and after the June 17 motion hearing does not establish that service on a security guard was sufficient. There was no evidence that Edwards or the process server ever attempted to locate any of the specific individuals enumerated in RCW 4.28.080(9) or that the security guard was statutorily authorized to accept service for the Hospital.
The documents she provides show only that Edwards provided the process server with the address of one of the hospital's facilities.
Furthermore, the evidence shows only that the process server was told by hospital staff that `all legal docs must be served w/security guards main campus,' CP at 56, or that the documents must be `serve[d] in patient billing, records legal Dept.' CP at 62. This alone does not establish an attempt to avoid process. Additionally, despite her assertion that the security guard prevented the process server from proceeding, Edwards submitted no evidence showing that the process server attempted to contact any party listed in RCW 4.28.080(9) after arriving at the Martin Luther King, Jr. Way or that the security guard refused to allow him to do so.
Accordingly, Edwards failed to make a prima facie showing that she served TGH, MultiCare, or Johansen, and the trial court properly granted the Hospital's motion to dismiss.
D. Service on John Doe 2 and John Doe 3
Edwards also argues that the trial court erred by failing to find that service on the security guard was valid service on John Doe 2 and John Doe 3, who were designated as security guards in her summons and complaint. Not only did Edwards not raise this argument below, it has no merit. At no time did Edwards present the trial court with documentation showing that she ever attempted to serve John Doe 2 or John Doe 3; the documents she submitted pertained only to service on the other parties listed in her summons and complaint. Because Edwards did not present any evidence she attempted to serve the two unnamed defendant security guards, dismissal of all claims against these individuals for lack of service was also appropriate.
IV. Time Accommodations
Edwards next appears to argue that the trial court erred when it denied her request for additional time to respond to the motions to dismiss to accommodate her health considerations. In effect, she appears to argue that the trial court should have granted her more time to prepare for the June 17 motion hearing and considered the documentation and argument she presented after the hearing.
Edwards may also be asserting that the trial court generally failed to address any accommodations she might need in light of her medical and health issues or that the trial court erred by failing to address her June 17 motion entitled, `MOTION REQUESTED RULING FOR ACCOMMODATION OF DISABILITIES Under federal and state Statues [sic] Case Law.' CP at 49. Our review of her filings and argument indicates that the only accommodation Edwards was arguably requesting at the time of the June 17 motion hearing was additional time to respond to the motions to dismiss. Accordingly, this is the only accommodation issue we reach.
Because we conclude that Edwards failed to establish that she properly served the defendants even considering the evidence Edwards submitted after the June 17 motion hearing, we need not address this issue.
For the same reason, we do not address whether the trial court should have ruled on the defendants' motions to strike.
V. Edwards' Request for Costs and Fees
Finally, Edwards requests costs and fees under RAP 18.1 as the prevailing party. Edwards is not the prevailing party, accordingly, her request for costs and fees is denied.
Because the evidence Edwards submitted both before and after the June 17 motion hearing fails to establish that she served the defendants within the 90 days allowed under RCW 4.16.170, the trial court did not err in dismissing Edwards' claims for insufficient service of process. We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
DEREN and HUNT, JJ., concur.