Evans v. Galloway

701 P.2d 659, 108 Idaho 711, 1985 Ida. LEXIS 490

• Court: Idaho Supreme Court
• Decided: June 4, 1985
• Docket: 15356
• Status: Published

Opinions

BAKES, Justice.

This is an appeal under I.A.R. 12 from an interlocutory order of the district court denying a motion to dismiss for lack of jurisdiction over the persons of defendants Rose and Steve Galloway. The Galloways, through their insurer, filed a special appearance in the district court, disputing the court’s personal jurisdiction over them. In this interlocutory appeal, we affirm the district court’s refusal to grant the Gallo-ways’ motion to dismiss.

The Galloways leased a business from the Evanses in Malad, Idaho. A fire on July 15, 1981, destroyed the building. Shortly after the fire, an attorney representing the plaintiffs sent a demand letter by certified mail to the Galloways claiming damages in the amount of $76,700, indicating that if a commitment to pay this sum was not made within 14 days, “we will have no other alternative than to pursue all necessary legal avenues for relief.” The return receipt shows that the letter was received by Rose Galloway on July 31, 1981, in Malad, Idaho. Early in the next month the Galloways moved from Malad, apparently to Idaho Falls, Idaho, and then to other places unknown, leaving no forwarding addresses. The record does reflect that on December 3, 1981, Rose Galloway was arrested in Montana and pleaded guilty to a charge of issuing bad checks. Seven months later she escaped from a Billings, Montana, prison.

On June 25, 1982, the Evanses filed suit against the Galloways, alleging that the Galloways negligently caused the fire and, additionally, that they had breached the terms of the lease.¹ A summons directed to the Galloways was issued. Service could not be effected, and a “sheriffs no-found return” was filed on July 14, 1982. Pursuant to I.C. § 5-508, service of summons by publication was subsequently printed in the Idaho State Journal, and copies of the summons and complaint were mailed to the Galloways at their last known address in Malad. The summons and complaint were returned unopened.

Capital Indemnity Corporation, the Gallo-ways’ insurer, entered a special appearance on behalf of the Galloways, filing a motion to dismiss with supporting affidavits, alleging that the district court lacked personal jurisdiction over the Galloways. The district court denied this motion in an order dated October 17, 1983. This interlocutory appeal was then certified.

After this appeal was filed, Rose Galloway was apprehended by law enforcement authorities. She has since been personally served with process and thus, as to her, the certified issue on this appeal is moot. However, Steve Galloway has not yet been located or personally served. Thus, a question remains as to whether the published service of process was adequate, allowing the district court to properly exercise personal jurisdiction over Steve Galloway.

Appellants assert that service of process by publication was constitutionally inadequate because Steve Galloway permanently left the State of Idaho nearly one year before notice was published. Having fully reviewed the affidavits submitted with the defendants’ motion to dismiss, we find no conclusive evidence that Steve Galloway was outside the State of Idaho at the time of publication. Although two affidavits submitted on behalf of the appellants state that Rose and Steve Galloway were not in Idaho at the time the affidavits were taken, these statements were based only on telephone contact initiated by Rose Galloway. Neither affiant specifically spoke with Steve Galloway. Neither affiant had personal knowledge as to Steve Galloway’s whereabouts. The record is therefore insufficient to establish conclusively that Steve Galloway was outside the state.

As noted by the district court, the leading case on the notice requirement is Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Mullane provides that due process requirements are satisfied if the notice given is “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., supra at 314, 70 S.Ct. at 657. Here, pursuant to I.C. §§ 5-508 and -509, the Evanses effected service of process by publication in the Idaho State Journal and mailed copies of the summons and complaint to the Galloways at their last known address in Malad, the address at which the Galloways had previously received the demand letter. Service by publication was ordered only after the Bonneville County sheriff was unable to personally serve the Galloways or obtain information as to their whereabouts.

There is a division of authority among the various supreme courts over whether or not substituted service of process by publication and mailing to the last known address is sufficient to satisfy due process where the defendants have moved, leaving no forwarding address. There is positive proof in this case that the defendant Rose Galloway did leave the State of Idaho, because she was arrested and imprisoned in the State of Montana before she escaped from prison and fled. However, on this record it is not established conclusively that Steve Galloway has actually fled the State of Idaho, although one might infer that from the record. Under these circumstances, we are inclined to follow those courts which have held that, for persons engaged in actionable conduct who subsequently move leaving no forwarding address by which their whereabouts may be determined, service of summons by publication in a newspaper of general circulation in the area, and a mailing of copies of the summons and complaint to that party’s last known address is reasonably calculated under all the circumstances to apprise that party of the pendency of an action. Clark v. LeBlanc, 92 N.M. 672, 593 P.2d 1075 (1979); Dobbins v. Beal, 4 Wash.App. 616, 483 P.2d 874 (1971); Manley v. Nelson, 50 Hawaii 484, 443 P.2d 155 (1968), cert. den. 394 U.S. 573, 89 S.Ct. 1299, 22 L.Ed.2d 555 (1969); Gill v. Gill, 277 Minn. 166, 152 N.W.2d 309 (1967). We acknowledge that there is substantial and persuasive authority to the contrary, see, e.g., Graham v. Sawaya, 632 P.2d 851 (Utah 1981); Price v. Sunmaster, 27 Ariz.App. 771, 558 P.2d 966, 970-71 (1976), which we have chosen not to follow under the circumstances of this case.

Thus, we conclude that the Evanses’ attempts to effect service upon the Gallo-ways, which conformed with statutory requirements, were reasonably calculated, under all the circumstances, to apprise the Galloways of the pendency of this action. Thus, the district court was correct in refusing to grant the defendants’ motion to dismiss.

DONALDSON, C.J., SHEPARD and BISTLINE, JJ., and McFADDEN, J., Pro Tern., concur.

1 . Gregory Wilson Doster Insurance Agency, Glacier General Agency, Inc., and Capitol Indemnity Corporation were also named as defendants in the suit.