Jordan v. Wiser

709 P.2d 1140, 76 Or. App. 500
CourtCourt of Appeals of Oregon
DecidedNovember 20, 1985
DocketA8206-03788; CA A32450
StatusPublished
Cited by2 cases

This text of 709 P.2d 1140 (Jordan v. Wiser) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Wiser, 709 P.2d 1140, 76 Or. App. 500 (Or. Ct. App. 1985).

Opinions

ROSSMAN, J.

Plaintiff1 appeals from a judgment against her which was entered because of her failure to effect service on defendant before the Statute of Limitations had run. We reverse and remand.

On October 26, 1980, plaintiff and Gwenda Jordan were involved in an automobile collision with Wiser (defendant). Plaintiff, in her individual capacity and as guardian ad litem for Gwenda, filed this action against defendant, as the driver, and his mother, as the owner, of the other vehicle. On September 29, 1982, just before the two-year Statute of Limitations would have run on plaintiffs individual claim, defendant’s mother was personally served with a copy of the summons and complaint at her mailing address in Oregon City. The process server asked her whether defendant lived in her house and, when she said that defendant lived with his wife in Washington, the process server left an extra copy of the summons and complaint with the mother in an apparent attempt at substituted service of defendant under ORCP 7D(2)(b).2 Proofs of service were filed for defendant and his mother. Although plaintiff had been informed by the Post Office and Motor Vehicles Division that the Oregon City address was a valid one for defendant, it is undisputed that he was residing with his wife in Washington at the time.

Shortly after defendant’s mother was served, she phoned him and explained that she had been served with papers regarding the collision and that some of the papers were for him. In early October, she took the papers to [503]*503defendant’s home in Washington, where she attempted to deliver them to him. It is not clear whether he refused even to touch the papers or simply threw them on the ground when they were handed to him. In any event, defendant denies having read them, although he concedes that his insurer had notified him before September of the pendency of the action.

In August, 1983, defendant and his mother filed a motion for summary judgment in two parts: (1) on behalf of defendant against plaintiff in her individual capacity, based on lack of jurisdiction for want of service of process before the running of the Statute of Limitations, and (2) on behalf of defendant’s mother against plaintiff in her individual capacity and as guardian ad litem for Gwenda, based on the absence of any issue of material fact regarding mother’s liability under the family purpose doctrine. Part 2 of the motion was allowed and is not challenged on appeal. Part 1 was denied. However, an order was entered bifurcating trial so that the issues of jurisdiction, sufficiency of service and the Statute of Limitations could be tried separately, before trial on the merits.

After the jurisdictional hearing, the trial court ruled that the purported substituted service of defendant was invalid, because plaintiff had not complied with ORCP 7D(2)(b), and dismissed plaintiffs individual action against defendant for lack of personal jurisdiction.3

Plaintiff moved for reconsideration, contending, for the first time, that mother, on behalf of plaintiff, had effected personal service on her son when she delivered the summons and complaint to him in Washington. The trial judge considered and rejected plaintiffs new theory:

“My view of the evidence has not changed since I ruled last November. I do not feel Mr. Wiser properly was served under the applicable rules and statutes. Although Mr. Wiser may have had actual notice in the sense he was aware of a pending action against him, this is insufficient under Oregon law.
“Moreover, I am not persuaded that Mrs. Jones visited her son Mr. Wiser sometime in October of 1982 with the intent to [504]*504serve him with the summons and complaint. Plaintiff has not met her burden on this issue.”

On appeal, plaintiff does not rely on substituted service; she relies solely on the theory that defendant was served by his mother. Plaintiff concedes that defendant was not served by any of the methods described in ORCP 7D; but she contends that defendant was served and had actual notice of the action against him and that, therefore, the service was valid.

Defendant does not dispute that he had actual notice of the action against him or that his mother placed the summons and complaint within his grasp. Further, he does not claim that he was prejudiced by the method in which he received notice. Nevertheless, he contends that the notice was inadequate because (1) his mother, a party to the action4 and certainly not plaintiffs agent, delivered the summons and complaint and that does not constitute “service” under ORCP 7D, and (2) even assuming that he was served by his mother, she did not return the summons and file it with a proof of service, as required by ORCP 7F(1).5

We agree with plaintiffs contention. As a prerequisite to the exercise of personal jurisdiction, it must be shown that defendant had adequate notice of the proceedings. Mullane v. Hanover Trust Co., 339 US 306, 70 S Ct 652, 94 L Ed 865 (1950). Under ORCP 7, that requirement is satisfied by meeting the constitutional standard stated in Mullane and set out in the first sentence of ORCP 7D(1):

“Summons shall be served, either within or without this state, in any manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to defend. * * *”

Compliance with the particular methods of service that follow the basic standard in ORCP 7D(1), see ORCP 7D(2) through [505]*505(6), is not mandatory; compliance merely provides a presumption that the basic standard was met. Lake Oswego Review v. Steinkamp, 298 Or 607, 695 P2d 565 (1985).

The basic standard of adequate notice in ORCP 7D(1) does not presume actual notice but, in fact, is based on the premise that a defendant may not receive actual notice of the action. Lake Oswego Review v. Steinkamp, supra, 298 Or at 614. Therefore, the question of whether service was reasonably calculated to apprise a defendant of the action is usually determined from the perspective of the plaintiff. However, the requirement of adequate notice may also be satisfied by showing that the defendant was served and received actual notice of the substance and pendency of the action. ORCP 7G;6 Lake Oswego Review v. Steinkamp, supra, 298 Or at 614-15; Korgan v. Gantenbein, 74 Or App 154, 702 P2d 427 (1985). Then the inquiry, in a sense, is reversed; the question of whether service was reasonably calculated to apprise defendant of the action is determined from the perspective of the defendant.

In Lake Oswego Review v. Steinkamp, supra, 298 Or at 613, the Supreme Court quoted with approval a commentary on Rule 7 which reflects this “reversed” inquiry.

“ ‘* * * A defendant who received actual notice can hardly assert that summons was not served by a manner calculated to give notice.’ ” Merrill, Jurisdiction Over Parties; Service of Summons (Rules 4-7), reprinted in Oregon Law Institute, Oregon Civil Procedure Rules 1980 at 237 (1979).

We said the same thing in Korgan v. Gantenbein, supra, 74 Or App at 159:

“In this case, defendant conceded that he had actual notice of the action * * *.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Baker v. Foy
782 P.2d 439 (Court of Appeals of Oregon, 1989)
Jordan v. Wiser
726 P.2d 365 (Oregon Supreme Court, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
709 P.2d 1140, 76 Or. App. 500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-wiser-orctapp-1985.