Sheldon v. Fettig

129 Wash. 2d 601

• Court: Washington Supreme Court
• Decided: August 1, 1996
• Docket: No. 63082-8
• Status: Published

Opinions

Sanders, J.

— The question in this case is the sufficiency of service of process where plaintiff attempted service of process by leaving a copy of the summons and complaint with defendant’s brother at her parents’ home. The only issue is whether the place where the summons was left constitutes defendant’s house of usual abode. Under these facts, we conclude that service complied with RCW 4.28.080(15) and accordingly affirm the trial court and the Court of Appeals.

FACTS

On July 15, 1989, petitioner Francine Fettig and respondent Pamela Sheldon were involved in a car accident in Grant County allegedly caused by Ms. Fettig’s negligence. On July 9, 1992, six days before the statute of limitations would have run, Ms. Sheldon filed suit for damages in Grant County Superior Court. She served process by sending a professional process server to the home of Ms. Fettig’s parents in Seattle, where a copy of the complaint and summons was left with Ms. Fettig’s brother.

On December 7, 1991, eight months before process was served, Ms. Fettig had relocated to Chicago to begin a training program with United Airlines to work as a flight attendant. Prior to moving, she had lived on her own for two to three years in Seattle and then Renton. Immediately prior to leaving for Chicago, Ms. Fettig gave up her Renton apartment and moved back into her parents’ Seattle home where she stayed for at least two months.

Ms. Fettig repeatedly used her parents’ address as the place where she could be contacted before, during, and after this two-month period. Four months before her departure for Chicago, Ms. Fettig was cited for speeding and gave her parents’ Seattle address as her own. Upon moving back into her parents’ home, she changed her address with the post office, giving her parents’ address as her own, and continued having all her mail sent there for at least seven weeks after moving to Chicago. Two weeks after Ms. Fettig went to Chicago, she registered to vote in Washington, swearing that she was a Washington resident living at her parents’ address. Ms. Fettig’s car was registered at the same address. When she moved to Chicago she left her car with her father and gave him power of attorney to sell it. The address on the car insurance was changed to her parents’ address and kept valid until the car was sold. When the car was sold, one and a half months prior to service of process, the bill of sale filed with the Department of Licensing listed the Seattle Fettig home as Ms. Fettig’s address.

Upon moving to Chicago, Ms. Fettig left much of her personal belongings at her parents’ house, all of which were allegedly boxed up. She also left an inactive savings account in Seattle with a balance less than $20.

Upon completion of a seven-week flight attendant training program in Chicago, Ms. Fettig took an apartment there with two other flight attendants. They signed a 13-month lease and moved in eight months before service was attempted. Ms. Fettig then had all her mail sent to Chicago, joined a health club, and opened a checking account. However, she never got an Illinois driver’s license but rather kept her Washington license, which used her former Renton address. Further, she never registered to vote in Chicago and remained registered in Seattle.

As a beginning flight attendant, Ms. Fettig was without a route and served on an on-call basis. She had blocks of time off, and, like her roommates, frequently flew home. The fact that she was frequently home is confirmed by her father, who stated that during August, the month service was made, Ms. Fettig spent perhaps four or five days at home and five or six the month before. Ms. Fettig was also there when the office of Ms. Sheldon’s attorney first called the Fettig home seeking Ms. Fettig’s insurance information. However, she had no designated bedroom at her parents’ home and further contends in her deposition the next door neighbor became her boyfriend in July, a month before service of process, and that she always slept at his house from then on when in Seattle.

Ms. Sheldon’s attorney first contacted Ms. Fettig by calling her at the Fettig family home in June, less than two months before process was served, using the phone number supplied by the insurer of the car driven by Ms. Fettig at the time of the accident. (It was a friend’s car.) Ms. Fettig’s father took the call, during which Ms. Fettig, who was at the Seattle house at the time, could be heard by the attorney conversing in the background. On the same day, Ms. Sheldon’s attorney sent Ms. Fettig a letter to her parents’ address and received a response from her within four days.

On August 7, 1992, Ms. Sheldon sent a professional process server to the Fettig family home. Ms. Fettig was reportedly not there and the server left the complaint and summons with Ms. Fettig’s brother pursuant to the substitute service of process statute. ROW 4.28.080(15). No evidence was given to indicate where Ms. Fettig was on August 7, 1992, the day process was served.

Twelve days after service was made, Ms. Fettig’s attorney gave notice of special appearance. On September 14,1992, Ms. Fettig served an answer to the complaint, asserting, as an affirmative defense, that Ms. Sheldon had failed to effect proper service of process.

After the statute of limitations and the 90-day extension period ran, Ms. Fettig moved for summary judgment on the grounds that the court lacked jurisdiction because service of process was insufficient. Ms. Fettig asserted she in fact lived in Chicago, her parents’ home was not her house of usual abode, and, accordingly, process left at her parents’ house was necessarily defective. The trial court denied the motion and ordered that the defense of improper service of process be stricken. The trial court reasoned at the time of service Ms. Fettig was a Washington State resident; at the time of service, Ms. Fettig maintained two "personal abodes,” one in Chicago and one at her parents’ home in Seattle; and Ms. Sheldon perfected service.

Ms. Fettig sought discretionary review by the Court of Appeals, which granted review and affirmed. Sheldon v. Fettig, 77 Wn. App. 775, 893 P.2d 1136, review denied, 127 Wn.2d 1016, 904 P.2d 300 (1995). She then petitioned this court for review and review was granted. She contends that service did not comply with RCW 4.28.080(15) because her parents’ home is not her house of usual abode. She does not contest that she is a Washington State resident.

SUFFICIENCY OF SERVICE OF PROCESS

The issue here is whether the Fettig family home was Ms. Fettig’s house of usual abode for substitute service of process pursuant to RCW 4.28.080(15). We conclude that it was and that this service of process was sufficient.

Substitute service of process is effective when (1) a copy of the summons is left at defendant’s house of usual abode, (2) with some person of suitable age and discretion, (3) then resident therein. RCW 4.28.080(15).

In interpreting substitute service of process statutes, strict construction was once the guiding principle of statutory construction. See Muncie v. Westcraft Corp., 58 Wn.2d 36, 38, 360 P.2d 744 (1961). However, more recently we have applied liberal construction to substitute service of process statutes in order to effectuate the purpose of the statute while adhering to its spirit and intent.

For example, in Martin v. Meier, 111 Wn.2d 471, 760 P.2d 925 (1988) the issue was whether a defendant was properly served under the motorist statute. Such service is statutorily permitted only when the defendant "departs from this state.” RCW 46.64.040. The defendant in Martin had not left the state although plaintiff was unable to locate him. This court liberally construed the term and upheld the sufficiency of service of process. In doing so, the term "departs” was interpreted by looking at the underlying purpose of the motorist statute, which is to provide a method for serving motorists who cannot be found in the State.

In Wichert v. Cardwell, 117 Wn.2d 148, 812 P.2d 858 (1991), we used liberal construction in interpreting the term "then resident therein” in the substitute service of process statute, noting that strict construction " 'has been the object of a great deal of criticism in modern times.’ ” Id. at 152, 155 (quoting 3 Norman J. Singer, Statutory Construction § 61.04 (4th ed. 1986)). In Wichert, service was left at defendant’s home with his adult stepdaughter who happened to be staying the night while the parents were away. The adult daughter, however, lived elsewhere, was self-supporting, and had no personal possessions at the parental house. Wichert, 117 Wn.2d at 150. We focused on the "spirit and intent of the statute” rather than "the literal letter of the law” and stated that the term should be defined so as to uphold the underlying purpose of the statute. Id. at 151. We held the dual purpose of the statute is to (1) provide means to serve defendants in a fashion reasonably calculated to accomplish notice and (2) allow injured parties a reasonable means to serve defendants. Wichert, 117 Wn.2d at 151-52. The court found an adult family member who was in sole control of the home while its inhabitants were away would likely present the papers to defendant. Id. at 152. Because the underlying rationale was thus met, the court held that the daughter fit within the statutory definition of "then resident therein.” Id. at 153.

In Martin v. Triol, 121 Wn.2d 135, 847 P.2d 471 (1993) we also applied liberal construction. The issue there was whether defendant could be served under the motorist statute during the 90-day tolling period following the three-year period allowed in the statute. RCW 46.64.040. The motorist statute authorizes service for only three years following an accident. Plaintiff attempted service within 90 days after expiration of the three years. In a strict reading, plaintiff failed to serve within three years. However, the court, mindful that the civil rules are meant to minimize miscarriages of justice on procedural grounds, stated " 'we do not apply a strict construction . . . [rjather, we so construe the statute as to give meaning to its spirit and purpose, guided by the principles of due process ....’” Triol, 121 Wn.2d at 145 (quoting Wichert, 117 Wn.2d at 156). The court defined the three-year period in which service could be made as three years plus the 90-day tolling period, and found service sufficient.

We also note many sister jurisdictions follow a rule of liberal construction in interpreting substitute service of process statutes when actual notice is received. See, e.g., Larson v. Hendrickson, 394 N.W.2d 524, 526 (Minn. Ct. App. 1986); Lavey v. Lavey, 551 A.2d 692 (R.I. 1988); Karlsson v. Rabinowitz, 318 F.2d 666 (4th Cir. 1963); Plonski v. Halloran, 36 Conn. Supp. 335, 337, 420 A.2d 117 (1980) (statutes governing substituted service should be liberally construed in those cases in which the defendant received actual notice). See generally Allen E. Korpela, Annotation, Construction of Phrase ”Usual Place of Abode,” or Similar Terms Referring to Abode, Residence, or Domicil, as Used in Statutes Relating to Service of Process, 32 A.L.R.3D, 112, 124-25 (1970).

We therefore conclude "house of [defendant’s] usual abode” in RCW 4.28.080(15) is to be liberally construed to effectuate service and uphold jurisdiction of the court. This is consistent with our procedural rules in (1) RCW 1.12.010, which mandates that "[t]he provisions of this code shall be liberally construed, and shall not be limited by any rule of strict construction”; and (2) CR 1, which states the rules "shall be construed to secure the just, speedy, and inexpensive determination of every action,” which promotes a policy to decide cases on their merits. Indeed, " '[mjodern rules of procedure are intended to allow the court to reach the merits, as opposed to disposition on technical niceties.’ ” Carle v. Earth Stove, Inc., 35 Wn. App. 904, 908, 670 P.2d 1086 (1983) (quoting Fox v. Sackman, 22 Wn. App. 707, 709, 591 P.2d 855 (1979)).

Moreover, the substitute service of process statute is designed to allow injured parties a reasonable means to serve defendants. Wichert, 117 Wn.2d at 151-52. Our holding here is consistent with this purpose. Finally, our holding well exceeds the constitutional due process requirements set out in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652, 94 L. Ed. 865 (1950) ("The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.”).

Applying our holding here, we note that there is no hard and fast definition of the term "house of usual abode.” See Korpela, Annotation, 32 A.L.R.3D at 127. The underlying purpose of ROW 4.28.080(15) is to provide a means to serve defendants in a fashion reasonably calculated to accomplish notice. Wichert, 117 Wn.2d at 151-52. With this purpose in mind, we approve the reasoning of the Court of Appeals, which stated:

The term "usual place of abode” is used in the statute because it is the place at which the defendant is most likely to receive notice of the pendency of a suit.

. . . "[UJsual place of abode” must be taken to mean such center of one’s domestic activity that service left with a family member is reasonably calculated to come to one’s attention within the statutory period for defendant to appear.”

Sheldon v. Fettig, 77 Wn. App. 775, 781, 893 P.2d 1136 (quoting Thoenes v. Tatro, 270 Or. 775, 529 P.2d 912 (1974)), review granted, 127 Wn.2d 1016, 904 P.2d 300 (1995).

Thus, the inquiry here is whether the Fettig family home was a center of domestic activity for Ms. Fettig where she would most likely receive notice of the pendency of a suit if left with a family member. See Black’s Law Dictionary 1544 (6th ed. 1990) (one definition of usual place of abode is the "place where [a] person would most likely have knowledge of service of process . . . .”).

Since Ms. Fettig used the family home for so many of the indicia of one’s center of domestic activity, it is fair to conclude it is a center of her domestic activity. She told the government to find her there if necessary for voting purposes, on her car registration, on the car’s bill of sale, and on her speeding ticket. She told her car insurer that that was her address. She returned home frequently when not in flight and was even there when Ms. Sheldon’s attorney called. When Ms. Sheldon’s attorney sent correspondence there, a response was immediately given.

Also the family home was the place where Ms. Fettig was most likely to receive notice of the pendency of a suit. This conclusion is drawn from the facts of this case although we could well imagine fact patterns in which serving a defendant at her parents’ when she lives elsewhere would not constitute sufficient service of process. See, e.g., Lepeska v. Farley, 67 Wn. App. 548, 833 P.2d 437 (1992); Thoenes v. Tatro, 270 Or. 775, 529 P.2d 912 (1974). However, defendant Fettig’s father had just done business for her under a power of attorney, was active in negotiating on her behalf in the matter at hand with the insurer and with Ms. Sheldon’s attorney, and was clearly looking out for her interests to the extent that it was most likely that she would promptly receive notice if the summons were left there.

The trial court reasoned that Ms. Fettig maintained two places of usual abode. While we think that most people generally maintain only one house of usual abode for service of process purposes, we recognize under certain circumstances a defendant can maintain more than one house of usual abode. See Van Buren v. Glasco, 27 N.C. App. 1, 217 S.E.2d 579, 91 A.L.R.3d 820 (1975) (holding that defendant working and spending the work week in South Carolina also maintained a place of usual abode amenable to substitute service in North Carolina where his wife and family lived and where he spent the weekends), overruled on other grounds in Love v. Moore, 305 N.C. 575, 291 S.E.2d 141 (1982). In so holding, courts have reasoned that "[i]n a highly mobile society it is unrealistic to interpret [the substitute service statute] as mandating service at only one location where, in fact, a defendant maintains several dwelling places.” Karlin v. Avis, 326 F. Supp. 1325, 1329 (1971).

Ms. Fettig contends it is impossible for a person to have two houses of usual abode; however, no case cited to us has involved facts warranting such a finding. Dolan v. Baldridge, 165 Wash. 69, 74, 4 P.2d 871 (1931), relied upon by Ms. Fettig, involved a defendant who had moved from Spokane to Seattle and service of process was later left at his vacated house in Spokane. In Dolan we did not reach the issue whether a defendant could maintain two houses of usual abode because we held that the Spokane house clearly was not a house of usual abode.

Ms. Fettig, working as a flight attendant, constantly jetting across the country, is a quintessential example of a highly mobile person splitting her time between two places, Seattle and Chicago. She maintained two places of usual abode, one at her family home in Seattle and one at her flat in Chicago.

CONCLUSION

We hold the term "house of [defendant’s] usual abode” in RCW 4.28.080(15) may be liberally construed to effectuate service and uphold jurisdiction. We also hold that in appropriate circumstances a defendant may maintain more than one house of usual abode if each is a center of domestic activity where it would be most likely that defendant would promptly receive notice if the summons were left there. We conclude Ms. Fettig’s family home in Seattle constituted such a center of domestic activity, where she in fact received actual notice. Accordingly, service of process was sufficient and the case will be heard on the merits.

The Court of Appeals is affirmed and this matter is remanded for further proceedings. Respondent shall recover her costs on appeal.

Dolliver, Smith, Guy, and Johnson, JJ., concur.