FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON MAY 9, 2024 IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON MAY 9, 2024 ERIN L. LENNON SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
LYRA JEAN SPENCER, ) No. 102147-0 ) Respondent, ) ) v. ) EN BANC ) FRANKLIN HILLS HEALTH- ) SPOKANE, LLC, ) ) Filed: May 9, 2024 Petitioner. ) ______________________________ )
MONTOYA-LEWIS, J.—A civil action begins by serving a summons and
complaint on the defendant. In legal terms, “service” means providing the summons
and complaint to the defendant or their representative to notify them of the action.
Our statutes provide procedures by which service may be performed in a manner
reasonably calculated to accomplish notice of the action. In this case, we must
determine whether service complied with RCW 4.28.080(9) when a corporation’s
human resources manager accepted the summons and complaint. We conclude that
it did. The terms of the statute are broad and include a number of people within a
corporation who can receive service on its behalf, including a “managing agent.”
We hold that the human resources manager is a managing agent of the corporation, Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
within the meaning of the statute. Therefore, we affirm in part, reverse in part, and
remand for this action to proceed in superior court.
FACTS AND PROCEDURAL HISTORY
Lyra Jean Spencer filed a personal injury lawsuit against Franklin Hills
Health-Spokane LLC in 2021. Her attorney hired an experienced process server,
David Kenworthy, to serve the summons. Kenworthy consulted corporate
information on file with the Washington Secretary of State and learned that Franklin
Hills’s registered agent was Jeremy Tolman, located at an address on Lidgerwood
Street in Spokane, Washington. Tolman was the executive director of Franklin Hills,
and Franklin Hills was located at the Lidgerwood address.
Kenworthy visited the Franklin Hills office at that address to serve the
summons and complaint. Upon arrival, Kenworthy stated that he had legal papers
to serve on the company and asked for Tolman. He was told that Tolman was not
available. Instead, a woman named Sheri Flavel came forward and accepted the
documents. Flavel signed the documents with her name, the date, and her position
as “HR [human resources] Manager.” Clerk’s Papers (CP) at 5, 39, 42. Kenworthy
completed a declaration of service stating that he delivered the documents into the
hands of Flavel, the “HR Manager, authorized to accept legal papers.” Id. at 31.
Flavel’s title was “Human Resource and Payroll Manager,” and she was
responsible for “accounts payable and activities related to human resources” at
2 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
Franklin Hills. Id. at 4. She “serve[ed] under the Executive Director [Tolman],
Director of Nursing Services, and the Business Office Manager.” Id.; Mot. To
Dismiss at 13-14. In her declaration, Flavel claimed she was not directed or
authorized to accept legal documents on behalf of the company, and she did not
affirmatively indicate to Kenworthy that she was authorized to accept legal
documents on behalf of Franklin Hills. CP at 5. Kenworthy stated she never
indicated to the contrary, either. Id. at 39.
Franklin Hills filed a motion to dismiss for insufficient service of process,
asserting that service on Flavel was improper because she is not a person authorized
to accept service under RCW 4.28.080(9). Spencer argued service was properly
accomplished because Flavel is a “managing agent” of Franklin Hills. The trial court
granted the motion to dismiss, concluding that courts must “strictly construe” the
service statute and that Spencer had not met her initial burden to show that service
was proper. Id. at 56-58. It also denied Spencer’s motion for reconsideration.
Spencer appealed, and the Court of Appeals reversed and remanded for an
evidentiary hearing. Spencer v. Franklin Hills Health-Spokane, LLC, No. 38858-1-
III, slip op. at 12-13 (Wash. Ct. App. June 1, 2023) (unpublished),
https://www.courts.wa.gov/opinions/pdf/388581_unp.pdf. The Court of Appeals
concluded Spencer had made a prima facie showing that service to Flavel was proper
and the trial court erred in dismissing the case without first holding an evidentiary
3 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
hearing to determine if Flavel was a “managing agent” or “office assistant” under
RCW 4.28.080(9). Id. at 2.
We granted Franklin Hills’s petition for review. 1 Wn.3d 1033 (2023). The
Washington State Association for Justice Foundation filed an amicus curiae brief.
ANALYSIS
Serving a summons and complaint commences a civil action and establishes
a trial court’s jurisdiction over the action. CR 3(a); RCW 4.28.020. Personal service
must be accomplished according to statutory procedure. CR 4(d)(2); RCW 4.28.080.
To initiate a lawsuit against a defendant corporation, like Franklin Hills, personal
service must be made to a person in a role enumerated in RCW 4.28.080(9):
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.
(Emphasis added.) Thus, service was accomplished according to the statute if Flavel
falls into one of these roles—as a “managing agent” of the corporation Franklin Hills
or as an “office assistant” to Tolman (who is undisputedly the head of the corporation
and its registered agent). Id.
We must determine whether Flavel was a suitable person to serve within the
meaning of the statute, RCW 4.28.080(9). The court’s “fundamental objective” in
statutory interpretation “is to ascertain and carry out the Legislature’s intent, and if
4 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
the statute’s meaning is plain on its face, then the court must give effect to that plain
meaning as an expression of legislative intent.” Dep’t of Ecology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).
The purpose of service is to provide due process, which requires notice and
an opportunity to be heard. Wichert v. Cardwell, 117 Wn.2d 148, 151, 812 P.2d 858
(1991); Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313, 70 S. Ct. 652,
94 L. Ed. 865 (1950). We conclude that the service statute is to be liberally construed
“in order to effectuate the purpose of the statute while adhering to its spirit and
intent.” Sheldon v. Fettig, 129 Wn.2d 601, 607, 919 P.2d 1209 (1996); Wichert, 117
Wn.2d at 156 (construing the service statute “as to give meaning to its spirit and
purpose, guided by the principles of due process”). Statutes that prescribe methods
of service are for the benefit of both the plaintiff and the defendant: “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.” Sheldon, 129 Wn.2d at 608 (citing Wichert, 117 Wn.2d at 151-
52).
As a whole, RCW 4.28.080(9) permits service not just on those in high
positions in the corporation but, more broadly, to people in roles where they must
understand the workings of the organization and know how to get important legal
documents for the corporation into the hands of those who will need to act on them.
5 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
For example, it authorizes service not only to obvious leadership positions in the
organization, such as the “president” or “registered agent,” but also to that person’s
“secretary, stenographer or office assistant.” RCW 4.28.080(9). And service can
also be made to people in other kinds of roles within the corporation, such as the
corporation’s “secretary, cashier or managing agent”—or to the “office assistant” to
one of those people. Id. The list includes those who have regular, meaningful
contact with the corporation’s heads but does not rely on service being provided
solely to those individuals. The statute provides a wide-ranging list of suitable
people to accept service on behalf of a corporation, and we liberally construe its
terms to effect its purpose of accomplishing service of process and notice to the
defendant. Sheldon, 129 Wn.2d at 607.
“[M]anaging agent” is a broad term that describes a person with a managerial
role within the corporation, either generally or in a particular area. RCW
4.28.080(9). An “agent” is a representative of a corporation. Reiner v. Pittsburg
Des Moines Corp., 101 Wn.2d 475, 477, 680 P.2d 55 (1984) (citing Crose v.
Volkswagenwerk Aktiengesellschaft, 88 Wn.2d 50, 58, 558 P.2d 764 (1977)). And
a managing agent must have authority and play “‘some substantial part in the
management of [the corporation’s] affairs generally or in a particular district or
locality.’” Johanson v. United Truck Lines, 62 Wn.2d 437, 440, 383 P.2d 512 (1963)
(quoting C.T. Foster, Annotation, Who Is “Managing Agent” of Domestic
6 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
Corporation within Statute Providing for Service of Summons or Process Thereon,
71 A.L.R.2d 178, § 3[a] (1960)). A “managing agent,” then, is someone with
substantial managerial responsibilities and authority to act on behalf of the
corporation in general or with respect to an area of the corporation’s business. A
corporation’s managing agent is generally someone who is “in charge of the
corporation’s property, business, and affairs in the locality in which [they are]
stationed, or of some branch or division of its operations, and [have] powers of a
managerial character in relation to that portion of the corporation’s business.”
Foster, supra, at § 3[b]. Consistent with the text of the statute as a whole, the
managing agent need not be a role designated formally by a board of directors but,
rather, someone with meaningful managerial and representative authority equipped
to promptly convey the notice to the corporation. See Sheldon, 129 Wn.2d at 608;
Campbell & Gwinn, 146 Wn.2d at 11.
In determining who falls within the term “managing agent,” we consider the
character of the agent and the facts and circumstances that render them a
representative of the corporation. Cf. Reiner, 101 Wn.2d at 477 (reviewing the
surrounding facts, circumstances, and inferences to determine who is “any agent”
for purposes of serving an out-of-state corporation under RCW 4.28.080(10)). For
example, in Johanson, we held that a dock foreperson was a managing agent for a
trucking company under RCW 4.28.080(9). 62 Wn.2d at 440. There, when the
7 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
manager at one of the defendant’s freight terminals was away on business, service
was made to Don Trotter, the dock foreperson in charge at that location. Id. at 438-
39. Though relatively little was known about Trotter’s role from the record, this
court concluded he was a managing agent because he was in charge of that location
at that time and had authority to hire and fire employees there. Id. at 439-40. He
had also been served with legal process directed at the company previously and had
not denied his authority to accept such process. Id. at 440. Ultimately, Trotter
qualified as a managing agent under the statute because he had managerial authority
and could act on behalf of the corporation within his purview. With this definition
of a managing agent in mind, we consider the circumstances before us.
In a challenge to the sufficiency of service of process, “[t]he plaintiff bears
the initial burden to prove a prima facie case of sufficient service,” such as by
producing a declaration of service that shows service was properly carried out.
Scanlan v. Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014); Witt v. Port of
Olympia, 126 Wn. App. 752, 757, 109 P.3d 489 (2005) (quoting 14 KARL B.
TEGLAND, WASHINGTON PRACTICE: CIVIL PROCEDURE § 4.40, at 108 (2004));
Streeter-Dybdahl v. Nguyet Huynh, 157 Wn. App. 408, 412, 236 P.3d 986 (2010)
(“[a]n affidavit of service is presumptively correct”). The burden then shifts to the
party challenging the service of process to “demonstrate by clear and convincing
evidence that the service was improper.” Scanlan, 181 Wn.2d at 847. Here, Spencer
8 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
produced Kenworthy’s declaration of service stating that he left the documents with
Flavel as “HR Manager, authorized to accept legal papers,” as well as the case
assignment notice that Flavel signed with her title as “HR Manager.” CP at 31, 42.
The record also includes declarations by Flavel and Kenworthy regarding their
interaction and Flavel’s role at Franklin Hills. A third declaration by Franklin Hills’s
compliance officer confirms that Tolman is the executive director and registered
agent, and Flavel is the human resources and payroll manager.
The evidence in the record shows that Flavel has managing authority over the
human resources department of the corporation. As “Human Resource and Payroll
Manager,” she is entrusted with some financial responsibility as well as employment
matters. CP at 4 (“my responsibilities include addressing accounts payable and
activities related to human resources”). A human resources manager generally
manages that department of an organization, exercises independent judgment and
discretion, and has input into decisions about hiring and terminating employees.
Spencer, No. 38858-1-III, slip op. at 9. Therefore, it is reasonable to infer that a
human resources manager has a substantial role in personnel decisions—such as
hiring and firing, like the dock foreperson in Johanson. Flavel has personnel and
financial responsibilities, identified herself as the “HR manager” in response to the
process server’s request for Tolman, and then accepted and signed the documents
when Kenworthy (1) asked for Tolman and (2) stated his purpose was to serve legal
9 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
papers. CP at 39. Additionally, she reports directly to the executive director of the
corporation (Tolman), which suggests she is highly positioned in the organization
and capable of swiftly conveying important legal documents to him.
Franklin Hills emphasizes that Flavel lacks formal permission to accept
service of process and is not in charge of the entire office, but neither of those facts
is dispositive or even particularly persuasive when our task is to consider the entirety
of the circumstances of her role. See Reiner, 101 Wn.2d at 477; see also Johanson,
62 Wn.2d at 439-40. First, “‘express authority to receive or accept service of
process’” is not necessary for one to be any kind of agent under the statute. Reiner,
101 Wn.2d at 477 (quoting Crose, 88 Wn.2d at 58). “‘It is sufficient if authority to
receive service may be reasonably and justly implied’” from the “‘surrounding facts
and the inferences which may properly be drawn therefrom.’” Id. (quoting Crose,
88 Wn.2d at 58). Here, sufficient facts support the inference that Flavel had adequate
managerial authority to place her in the role of a “managing agent” authorized by
statute to receive service, so it is of little moment that accepting service is not a duty
expressly assigned to her by Franklin Hills. And, like in Johanson, she accepted the
legal papers without ever indicating she was not authorized to accept them. 62
Wn.2d at 440.
Second, we have rejected the notion that a managing agent must manage the
entire corporation as “unrealistic” “in today’s world of decentralization in business,
10 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
banking, and industry.” Id. at 441 (overruling in part D.M. Osborne & Co. v.
Columbia County Farmers’ All. Corp., 9 Wash. 666, 38 P. 160 (1894)). Instead, we
have adopted a rule that a managing agent may be someone in charge of a branch or
department of the corporation. Id. We decline to narrow the scope of who may be
considered a managing agent under RCW 4.28.080(9), as that would be inconsistent
with the statute’s purpose. See Sheldon, 129 Wn.2d at 607. Therefore, we hold that
a person may be a managing agent if they are in charge of a single department of the
corporation’s business, if they work at a place other than its principal office, and
even if their discretion is controlled somewhat by a superior—provided that they
have substantial managerial responsibilities and authority to act on behalf of the
corporation in general or with respect to an area of the corporation’s business. See
Johanson, 62 Wn.2d at 441 (quoting Roehl v. Texas Co., 107 Cal. App. 691, 704,
291 P. 255 (1930)).
Spencer has met her burden of showing that service was properly carried out
by serving Flavel, who is a managing agent of Franklin Hills, and Franklin Hills has
not rebutted that evidence of her managerial authority. We conclude, as a matter of
law, Flavel meets the definition of a managing agent under the statute. Therefore, it
is not necessary to conduct an evidentiary hearing on this issue. Likewise, we
decline to reach the questions of whether Flavel may be an office assistant to Tolman
11 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
or whether substantial compliance may be permitted under the statute because actual
compliance was accomplished here.
CONCLUSION
We affirm the Court of Appeals’ decision that the trial court erred in
dismissing this case based on failure of service. We disagree with the Court of
Appeals that any further fact-finding is necessary regarding whether the human
resources manager was a proper person to accept service. As a matter of law, she
was a managing agent and proper person to accept service under RCW 4.28.080(9).
This lawsuit may proceed to discovery and trial. Accordingly, we affirm in part,
reverse in part, and remand for further proceedings consistent with this opinion.
12 Spencer v. Franklin Hills Health-Spokane, LLC No. 102147-0
______________________________
WE CONCUR:
___________________________ ______________________________
13 No. 102147-0
STEPHENS, J. (concurring in part, dissenting in part)— I join the majority in
holding that RCW 4.28.080(9), including the term “managing agent,” must be
liberally construed to effectuate its purpose of providing due process and notice to
the defendant. Majority at 5-6, 11. The trial court erred by strictly construing the
service statute and summarily dismissing Spencer’s suit for failure to make a prima
facie showing of valid service. I disagree, however, with the majority’s decision to
summarily rule in Spencer’s favor without the benefit of any factual findings. Given
the procedural posture of this case, I would affirm the Court of Appeals entirely and
remand to the trial court for further proceedings under CR 12.
While a claim of insufficient service of process may be waived if not timely
raised, once challenged, the plaintiff bears the initial burden to show a prima facie
case of sufficient service, and if this burden is met, the defendant “must demonstrate
by clear and convincing evidence that the service was improper.” Scanlan v.
Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014); State v. LG Elecs. Inc., 186
Wn.2d 169, 176, 375 P.3d 1035 (2016) (absent a hearing, “the plaintiff’s burden is
only that of a prima facie showing of jurisdiction.”)
1 Spencer v. Franklin Hills Health Spokane, LLC., No. 102147-0 (Stephens, J., concurring in part, dissenting in part)
Here, based on an erroneous reading of the service statute, the trial court
granted Franklin Hills’ motion to dismiss at step one. Spencer appealed on the
ground that the court should have held a preliminary hearing under CR 12(d) because
material facts were disputed. Such hearings may involve witness testimony or they
may be based on documentary evidence. Outsource Servs. Mgmt. LLC v. Nooksack
Bus. Corp., 172 Wn. App. 799, 807, 292 P.3d 147 (2013), aff’d, 181 Wn.2d 272, 333
P.3d 380 (2014). But in any case, where the facts surrounding the sufficiency of
service are disputed, the trial court must make the necessary findings of fact. Noll
v. Special Elec. Co., 9 Wn. App. 2d 317, 322, 444 P.3d 33 (2019). 1
While I agree with the majority that Spencer has met her prima facie burden
of establishing proper service under the liberal definition of “managing agent,” I
disagree with the majority’s statement that Franklin Hills “has not rebutted”
evidence of Flavel’s managerial authority because it was never called on to offer
rebuttal. Majority at 11. Like the Court of Appeals, I believe the proper next step
is to remand for a hearing under CR 12(d), where Franklin Hills may offer relevant
evidence and attempt to meet its burden of proof. See Scanlan, 181 Wn.2d at 847
1 While CR 12 motions may often be resolved on summary judgment, that assumes no genuine issues of material fact. A CR 12(d) preliminary hearing is not a motion but an “action tried on the facts,” requiring the trial court to make findings of fact and conclusions of law. Noll, 9 Wn. App. 2d at 322. See CR 52(a) (courts are required to find the facts specially in all actions tried on the facts).
2 Spencer v. Franklin Hills Health Spokane, LLC., No. 102147-0 (Stephens, J., concurring in part, dissenting in part)
(at a CR 12(d) hearing on service, the defendant must show by “clear and convincing
evidence” that service was improper). For this reason, I respectfully dissent.