SUMMARY
McCann v. Orth, 95 Wn. App. 1040, review denied, 139 Wn.2d 1003, 989 P.2d 1141 (1999)
Unpublished Opinion
Facts
On September 25, 1997, Robert and Margaret McCann (“McCann”) filed an action for damages against Allison Orth (“Orth”), arising out of an accident when Orth rear-ended the McCanns in Spokane on October 9, 1994. The McCanns’ attorney in Walla Walla asked Spokane lawyer William Edelblute to serve the papers on Orth in Spokane. Edleblute’s legal secretary Kimberly Bates went to the home of Orth’s mother, Joan Orth, and left a copy of the summons and complaint with Joan Orth on September 26, 1997. At the time of service, Allison Orth did not live with her mother, but maintained her own house in Spokane. She had lived with her mother during the summer of 1997 for two weeks while waiting to move into her new house.
On October 3, 1997, Orth’s counsel filed a notice of appearance but took no further action until February 4, 1998, when a motion to dismiss for insufficient service of process was filed, which was after the statute of limitations and 90 day tolling period had passed.
Bates filed an affidavit on March 13, 1998, stating that she made substitute service on Joan Orth at Allison Orth’s “usual place of abode.” Both Joan and Allison Orth filed affidavits stating that Allison did not live with her mother and that Joan Orth had told this to the process server. The court ruled that once Orth presented evidence that service was not made as required by statute, the burden of proof was on McCann to prove otherwise. McCann did not do so, other than producing an affidavit from Bates that Joan Orth told Bates at the time of attempted service that Allison lived there and an affidavit from Edelblute that Bates told him that Joan Orth told her that Allison Orth lived there. The court found these affidavits irrelevant to the issue of where Orth lived and also questioned their relevance on hearsay grounds.
On April 20, 1998, the court dismissed the action for insufficient service of process because Allison Orth did not live at her mother’s house.
Judicial History
Orth moved to dismiss the McCann’s suit for insufficient service of process. The trial court granted the motion.
The Court of Appeals affirmed the trial court decision, holding that service at Orth’s mother’s house was insufficient because Orth did not live at her mother’s house. McCann appealed to the Washington Supreme Court, but review was denied.
Specific Issues
- Did Orth waive the defense of improper service by one or more of the following:
a. Her mother accepted service for her at the mother’s home;
b. Her attorney filed a notice of appearance for her;
c. She waited until the statute of limitations and the 90-day tolling period had elapsed before filing her motion to dismiss for lack of jurisdiction?
No to a, b, & c - Did Orth’s mother’s actions in accepting service for her at the mother’s home constitute substitute service?
No - Were Orth’s mother’s actions in accepting service for her at the mother’s home sufficient to give actual notice to Orth?
No - Did Orth’s mother’s actions in accepting service for her at the mother’s home constitute substantial compliance?
No
Holdings
- The defense of insufficient service of process is waived if the party does not assert it either in a responsive pleading or a motion under CR 12(b)(5), French v. Gabriel, 116 Wn.2d 584, 588, 806 P.2d 1234 (1991), or if defendant acts in a manner inconsistent with asserting the defense, Romjue v. Fairchild, 60 Wn.App. 278, 281, 803 P.2d 57, review denied, 116 Wn.2d 1026 (1991). The defense of insufficient service can be raised at any time, even after the trial starts. French, 116 Wn.2d at 58.
- The defendant’s duties only extend to accepting properly tendered service and not evading service. There is no requirement that improperly tendered service be rejected. Thayer v. Edmonds, 8 Wn.App. 36, 41, 503 P.2d 1110 (1972), review denied, 82 Wn.2d 1001 (1973).
- While the service statute is to be liberally construed to effectuate service, Wichert v. Cardwell, 117 Wn.2d 148, 812 P.2d 858 (1991); Sheldon v. Fettig, 77 Wn.App. 775, 779, 893 P.2d 1136 (1995), aff’d, 129 Wn.2d 601, 919 P.2d 1209 (1996), McCann’s claim that the service was in substantial compliance with RCW 4.28.080(15) because it was reasonably calculated to give actual notice and did in fact give actual notice is not enough to effect service.
- While due process requires only that a defendant receive notice reasonably calculated to give actual notice, constitutional adequacy is not enough. Wichert, 117 Wn.2d at 151-52; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Compliance with the statutory requirements must go beyond due process requirements. Weiss v. Glemp, 127 Wn.2d 726, 734, 903 P.2d 455 (1995). Actual knowledge of the lawsuit does not create jurisdiction. RCW 4.28.020; RCW 4.28.080; CR 4; Lee v. Western Processing Co., 35 Wn.App. 466, 469, 667 P.2d 638 (1983).
- The reasonableness of the process server’s belief that service would be effected by leaving the papers with Joan Orth has no relevance, thus the affidavits tendered as evidence were properly excluded.
Reasoning
For the purposes of service of process, most people have only one abode though it is possible to have more than one center of domestic activity. Substitute service at the home of a parent does not comply with the statute if the defendant does not also live there or maintain a center of domestic activity there. To provide a means for the plaintiff to proceed is not to relieve him of the trouble of discovering where the defendant lives and in this case the defendant was not served at her usual abode or at a center of domestic activity.
Filing a notice of appearance does not waive the right to challenge sufficiency of service. Orth did not file an answer and she was not required to alert opposing counsel that service was deficient.
Regarding admissibility of the affidavits, where Allison Orth actually lived is the only relevant fact at issue. Her mother’s acceptance of the papers is irrelevant. The mother’s statements to the process server would only be relevant if Allison Orth was attempting to avoid service and this allegation was never made by the McCanns.
C4PSE Comment
This set of circumstances places process servers in a tenuous position. Although there is some dispute between the defendant’s mother and the process server as to exactly what was said at the time of service, it is irrelevant in the eyes of the court. The only question for the court was whether or not the defendant was living with the defendant’s mother at the time of service.
Assuming the process server in this situation is telling the truth about what the defendant’s mother said at the time of service then that means the mother was lying for reasons unknown and unknowable to the server. And it is still irrelevant to the court.
Unfortunately this is not an unusual situation. There have been numerous instances where the person at the door has lied to the process server but not in the usual manner. We normally expect people to deny being who they are or to deny their own residency or the residency of another. But we also find situations where people will claim someone does live with them when indeed they don’t.
When serving a summons and complaint in a personal injury case the Center strongly recommend you complete such services using personal service only and avoid the use of the abode service rule except as a last resort.
This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
