133 Wash. 2d 160 | Wash. | 1997
Lead Opinion
— We are asked in this case to determine if service of process upon a person who was merely looking after the defendant’s home in his absence was sufficient under our substitute service of process statute, RCW 4.28.080(15). RCW 4.28.080(15) has remained essentially untouched by the Legislature since it was enacted in 1893. What the Legislature has not seen fit to do — change the wording of the statute — we decline to do by judicial proclamation in the guise of liberal construction. The language of RCW 4.28.080(15), permitting service of process at the defendant’s usual abode with a person of suitable age and discretion who is then resident therein, should be enforced as it was written. We do not adopt the principle in service of process that "close is good enough,” permitting service of process on virtually any person who by happenstance is present in the defendant’s home. Consequently, we affirm the Court of Appeals and hold that a person who was a fleeting presence in the defendant’s home was not "resident” therein for purposes of RCW 4.28.080(15).
ISSUE
For purposes of RCW 4.28.080(15), is a person who was not living in the defendant’s home, but agreed to take in his mail and feed his dog while he was on vacation, ame
FACTS
Carl Salts allegedly sustained injuries while working at the home of Cliff Estes in November of 1990. On November 22, 1993, Salts initiated a lawsuit against Estes in the Pierce County Superior Court.
Johnson met Mary TerHorst at the front door of Estes’s home. TerHorst, who was neither related nor married to Estes, briefly spoke to Johnson; Johnson then handed Ter-Horst a copy of the summons and complaint, and left.
On December 6, 1993, an attorney appeared on Estes’s behalf. Subsequently, Estes moved for summary judgment, contending that service of process was insufficient under RCW 4.28.080(15) and that Salts did not commence his action within the three-year statute of limitations of RCW 4.16.080(2).
The record on summary judgment indicates TerHorst was inside Estes’s home when Johnson arrived and she answered the door in response to Johnson’s knock. Ter-Horst was looking after Estes’s home, at Estes’s request, while Estes was out of town for a couple of weeks. Ter-Horst was at Estes’s home over the two-week period for the purpose of feeding his dog, bringing in the mail, and taking care of similar matters. TerHorst spent a total of one to two hours at Estes’s home between Estes’s departure on vacation and the attempted service of the summons. TerHorst was not the defendant’s relative or employee. She never lived at the defendant’s home nor did she keep any of her goods there. She was served with the summons
Johnson also stated in his declaration, "TerHorst said that she was a resident of Cliff Estes’ abode.” Supplemental Clerk’s Papers at 24. TerHorst denies saying that.
The trial court granted Estes’s summary judgment motion, holding TerHorst was not resident in Estes’s home for purposes of RCW 4.28.080(15). The Court of Appeals affirmed the trial court. Salts v. Estes, No. 18415-0-II (Wash. Ct. App. Mar. 15, 1996). We granted review.
DISCUSSION
RCW 4.28.080 describes at length how a summons may be served on a defendant. The statute generally requires personal service of a summons on the defendant, but also permits substituted personal service on the defendant "by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.” RCW 4.28.080(15).
Thus, the statute states three requirements for a valid substituted service of process: (1) the summons must be left at the defendant’s "house of his or her usual abode”; (2) the summons must be left with a "person of suitable age and discretion”; and, (3) the person with whom the summons is left must be "then resident therein.” The service on TerHorst satisfied the first two requirements of the statute. The third element is at issue in this case.
Even those unlearned in the law would most likely conclude a house of usual abode is somebody’s home, even if only on a seasonal basis, and "then resident therein” means a person who is actually living in that house at the time of the service of process. In Wichert v. Cardwell, 117 Wn.2d 148, 812 P.2d 858 (1991), we addressed the meaning of the statutory phrase "then resident therein” and
Thus, as a substitute for deciding the actual meaning of the word "resident,” we concluded in Wichert that the legislative intent behind the substituted service statute was to provide due process, i.e., notice and the opportunity to be heard, quoting 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.’ ”
In Sheldon v. Fettig, 129 Wn.2d 601, 919 P.2d 1209 (1996), we held service on the defendant’s twelve-year-old brother at the Seattle home of the defendant’s parents at a time when the defendant was actually living in Chicago satisfied the statutory requirement that substituted service occur at a defendant’s house of usual abode. We decided in Sheldon that "house of usual abode” means "center of one’s domestic activity.” Id. at 610. Thus, a person who actually lives in Chicago can maintain her "center of domestic activity” in Seattle, even if she is there only a few days a month for purposes of Washington’s
Wichert and Sheldon mark the outer boundaries of RCW 4.28.080(15). Precious little would be left of the term "then resident therein” were we to determine substituted service can be obtained on a person who happens to be in the defendant’s house only to feed the defendant’s dog and check his mail.
Wichert professed an inability to define "resident” with precision, basing its helplessness on McGrath, where the issue before the Court was not the meaning of the term "resident” in the sense of who is a resident. The question was whether a person could have more than one place of residence under a road vacation statute for the purpose of signing a petition for a road vacation. The Court concluded: "A man can have only one place of residence for voting purposes and certain other purposes, but there is no reason why, within the meaning of the vacation statute . . . he may not have more than one place of residence.” McGrath, 194 Wash. at 162. By contrast, the issue in the present case is not where a residence is, but rather who is a resident for purposes of the substituted service statute, an entirely different statute from the road vacation statute the McGrath Court considered.
The -side of reside has no connection with English side. It comes from the Latin sedere "settle” (source of English sedentary, session, etc. and related to sit). Combination with the prefix re- "back” produced residere "settle back, remain in place, rest,” which passed into English via its present participle as resident "settling permanently in place.”
John Ayto, Dictionary Of Word Origins 441 (1990). "Resident” means "[r]esiding, dwelling, or having an abode in a place.” 8 The Oxford English Dictionary 517-18 (1933). Faithful to the Latin roots of the word, dictionaries uniformly define "resident” to have the sense of settling permanently in place.
Thus, RCW 4.28.080(15) is unambiguous. "Resident” requires something more than "present” in the
Although some courts, like Wichert, have generally approved service on close relatives of the defendant who happen to be temporarily in the defendant’s home,
It appears the common theme in the case is not only whether the defendant is reasonably likely to receive the papers served, but whether the person to whom they are handed is a full-time resident of the defendant’s dwelling house or usual place of abode. See 2 Moore’s Federal Practice ¶ 4.11(3) at 4:126. As 4 C. Wright and A. Miller, Federal Practice & Procedure § 1096 at 368-69, note:
"Residing therein” has long been held to require the recipient of the papers to be actually living in the same place as defendant. Thus, service on an employee of defendant who spends only a part of his time at defendant’s residence is defective. See also 62 Am. Jur. 2d, Process § 102 at 887-88 (1972).
Wichert is distinguishable from the present case both by the fact that the daughter was related to the defendants, and had actually slept in the home of the defendants the previous night at the time service was accomplished. Neither one of these facts was present here.
We decline to interpret RCW 4.28.080(15) so that mere
Our duty is to effectuate the intent of the Legislature in enacting a statute. If a statute is unambiguous, as is RCW 4.28.080(15), we are obliged to apply’ the language as the Legislature wrote it, rather than amend it by judicial construction. GESA Fed. Credit Union v. Mutual Life Ins. Co., 105 Wn.2d 248, 252, 713 P.2d 728 (1986). We must provide consistency and predictability to the law so the people of Washington may conform their behavior accordingly. The language of RCW 4.28.080(15) sets forth the standards for substituted service of process. We best accomplish the purpose of establishing predictable standards by not stretching the meaning of those standards beyond their plain boundaries.
CONCLUSION
We hold for purposes of RCW 4.28.080(15) that "resident” must be given its ordinary meaning — a person is resident if the person is actually living in the particular home. Under no definition of "resident” found in any dictionary of the English language can any support be found
Durham, C.J., and Dolliver, Guy, and Madsen, JJ., concur.
By waiting until the three-year statute of limitation for personal injuries had almost run, Salts left little room for manuvering should Estes not be available for service. As it turned out, Estes was out of town.
We construe the facts on summary judgment in a light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).
In Mullane, the Court held notice by publication there did not comport with the requirements of due process.
Weiss v. Glemp, 127 Wn.2d 726, 903 P.2d 455 (1995), represents a stricter adherence to the statutory language than the cases involving a "liberal construction” approach. There, Weiss argued windowsill service was constitutionally adequate, since it was reasonably calculated to provide notice to the defendant. In rejecting Weiss’s argument, we said, "Nevertheless, there is a difference between constitutionally adequate service and service required by the statute: '[Bjeyond due process [requirements], statutory service requirements must be complied with in order for the court to finally adjudicate the dispute between the parties.’ ” Weiss, 127 Wn.2d at 734 (quoting Thayer v. Edmonds, 8 Wn. App. 36, 40, 503 P.2d 1110 (1972).
Employed as an adjective, as in the statute, "resident” means: "residing, dwelling in a place.” Random House Unabridged Dictionary 1638 (2d ed. 1993); "dwelling or having an abode for a continued length of time.” Webster’s Third New International Dictionary 1931 (1971); "permanent inhabitant.” The Oxford Guide to the English Language 477 (1984); "dwelling or having an abode in a place for a continuance of time.” Webster’s New Twentieth Century Dictionary 1540 (2d ed. 1979); "[djwelling in a particular place.” The American Heritage Dictionary 1535 (3d ed. 1992).
See, e.g., M. Lowenstein & Sons, Inc. v. Austin, 430 F. Supp. 844, 845 (S.D.N.Y. 1977) (“Rule 4(d)(1) is broad enough to include a student returning home from college to stay at least overnight at her parents’ residence.”); Sangmeister v. McElnea, 278 So. 2d 675 (Fla. Dist. Ct. App. 1973) (defendant’s aunt who was a citizen of England and planned to return there after her visit but who had been residing in defendant’s home for approximately four months at the time summons and complaint was left with her at defendant’s home was a "person of the family over fifteen years of age” within meaning of statute allowing service of process to be made by leaving copies of summons at defendant’s usual place of abode with some person of family over 15 years of age); but see Hovarth v. Aetna Life Ins. Co., 634 So. 2d 240, 240 (1994) (after change in Florida substituted service statute: "attempted service of a relative who is not residing with the party to be served is insufficient, regardless of the probability that the party to be served will or does learn of the attempted service.”).
Washington appears to define "resident” more narrowly in the insurance context. In National Gen. Ins. Co. v. Sherouse, 76 Wn. App. 159, 163, 882 P.2d 1207 (1994), review denied, 126 Wn.2d 1009, 892 P.2d 1088 (1995), the Court of Appeals indicated the term "resident” in an insurance contract meant something more permanent than a passing or transient presence at a location:
Generally, "resident” connotes a living arrangement with some degree of permanence, while "household” means residents "who dwell under the same roof and compose a family”. General Motors [Acceptance Corp. v. Grange Ins. Ass’n, 38 Wn. App. 6, 684 P.2d 744 (1984)], at 10 (citing Consumers United Ins. Co. v. Johnson, 26 Wn. App. 795, 801, 614 P.2d 657, review denied, 94 Wn.2d 1022 (1980)). A person does not have to remain physically within the household, however, so long as the person has some regular, permanent attachment to the family household. Pierce [v. Aetna Cas. & Sur. Co., 29 Wn. App. 32, 627 P.2d 152 (1981)], at 36-37.
*170 In Pierce, the court outlined four factors for consideration in determining who is a resident of the same household: "(1) the intent of the departing person, (2) the formality or informality of the relationship between the person and the members of the household, (3) the relative propinquity of the dwelling units, and (4) the existence of another place of lodging.” Pierce, at 38. An important element is whether the "departing person” intends to eat or sleep away from the residence permanently or temporarily with the intention of returning. See General Motors, at 10-11.
Dissenting Opinion
(dissenting) — Personal service may be effected on an individual by leaving a copy of the summons at the usual abode of that person with someone of suitable age and discretion who is "then resident therein.” RCW 4.28.080(15). The majority concludes that in order for a person to be "then resident” in the usual abode of the individual upon whom service is sought, that person must actually be living in the abode. Majority op. at 170. Because that conclusion is in direct conflict with established precedent, I dissent.
This court last visited the "then resident therein” language of RCW 4.28.080(15) in Wichert v. Cardwell, 117 Wn.2d 148, 812 P.2d 858 (1991). There, we held that process was properly served on defendants by leaving a copy of the summons with the daughter of one of the defendants at the defendants’ usual abode. We concluded that "[w]hen the defendant is absent, the person in possession of the house of usual abode is likely to present the papers to the defendant . . . .” Wichert, 117 Wn.2d at 152. Significantly, the person to whom the summons was delivered in Wichert did not reside at the defendants’ usual abode, maintained her own residence, was self-supporting and kept no personal possessions at the residence of the defendants. Like Ms. TerHorst here, she was merely in possession of the defendants’ abode.
The majority opinion contradicts Wichert, stating, "We decline to interpret RCW 4.28.080(15) so that . . . 'posses
Unless and until Wichert is overruled, it is still the last word from this court on the subject and the decision must be followed. See Hamilton v. Department of Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988) ("Once this court has decided an issue of state law, that interpretation is binding until we overrule it.”) (citations omitted). Unfortunately, the majority strays from Wichert, suggesting that to be "then resident” one must meet a dictionary definition of the term "resident” and must "actually liv[e] in that house [defendant’s] at the time of the service of process.” Majority op. at 167, 164. A flaw in that reasoning is that RCW 4.28.080(15) does not speak of delivering a copy to a "resident,” but rather to a person "then resident.” The use of the word "then” before "resident” suggests that the person to whom the summons is delivered may have a more transitory relationship to the abode than does the person upon whom service is sought. Such a view
Furthermore, the majority’s strict construction of "then resident” runs counter to the liberal construction we gave those words in Wichert. We indicated there that "we do not apply a strict construction in interpreting the statute. Rather, we so construe the statute as to give meaning to its spirit and purpose, guided by the principles of due process stated above.” Wichert, 117 Wn.2d at 156; see also Sheldon v. Fettig, 129 Wn.2d 601, 607-08, 919 P.2d 1209 (1996) (In Wichert, we gave "the term 'then resident therein’ ” a liberal construction, "noting that strict construction 'has been the object of a great deal of criticism in modern times.’ ”) (quoting 3 Norman J. Singer, Statutory Construction § 61.04 (4th ed. 1986)).
Unfortunately, the majority’s insistence on a strict definition of the term "resident” creates an anomaly in that the terms "house of usual abode” and "person of suitable age and discretion,” which also appear in RCW 4.28.080(15), have been accorded liberal construction. See Sheldon v. Fettig, 129 Wn.2d at 607. The majority’s strict interpretation of another phrase in the same statute contravenes the principle that "the court may not place a narrow, literal, and technical construction upon a part only of a statute and ignore other relevant parts.” Graham v. State Bar Ass’n, 86 Wn.2d 624, 627, 548 P.2d 310 (1976) (citing State v. Rinkes, 49 Wn.2d 664, 667, 306 P.2d 205 (1957)).
Because the majority strains to distinguish Wichert, I am left to conclude that it has, in effect, repudiated that decision without overruling it. Indeed, the majority criticizes Wichert, suggesting that this court "professed an inability to define 'resident’ with precision,” and that we "concluded the meaning of resident was too 'elastic’ to be of much use.” Majority op. at 166, 165. While we did indicate that the term "resident” is elastic, we did not conclude that it was without meaning. Instead, we held
Accordingly, I cannot agree with the majority that we have not previously determined the meaning of being "then resident” for the purposes of substitute service of process. Although we did not give the term "then resident” a precise dictionary definition as the majority does today, we were purposeful in not doing so. In that regard, we concluded in Wichert that a bright-line rule for determining when an individual is "then resident” is to be avoided because "a case-to-case determination is necessitated by the fact-specific requirements of the statute.” Wichert, 117 Wn.2d at 152 (citing Nowell v. Nowell, 384 F.2d 951, 953 (5th Cir. 1967), cert. denied, 390 U.S. 956 (1968)). That conclusion is wholly consistent with Black’s Law Dictionary which states that the "[w]ord 'resident’ has many meanings in law, largely determined by statutory context in which it is used.” Black’s Law Dictionary 1309 (6th ed. 1990) (emphasis added) (citing Kelm v. Carlson, 473 F.2d 1267, 1271 (6th Cir. 1973)).
Under Wichert, it is clear that an individual is "then resident” when that individual is in possession of the defendant’s usual abode and delivery of the summons on that individual would likely inform the absent defendant that a lawsuit has begun against him or her. That is the case here. At the time the summons was delivered to Ter-Horst, she was in possession of Estes’s abode and delivery of the summons to her was likely to inform Estes that Salts had begun a lawsuit against him.
Finally, it is worth noting that on facts very close to these, the Supreme Court of Rhode Island reached a result consistent with that espoused in this dissent. In the case of Plushner v. Mills, 429 A.2d 444 (R.I. 1981), the Rhode Island court looked at a statute of that state which is almost identical to RCW 4.28.080(15) in that it provided for substitute service of process by leaving copies of the summons and complaint at the defendant’s "dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . . . .” Plushner, 429 A.2d at 445 (emphasis added) (quoting Dist. R. Civ. P. 4(d)(1)). The court held there that service on the defendant’s daughter, who maintained a separate residence, was effected because she "had been put in charge” of the defendant’s house while he was away and, on the particular day of service, she was "taking care of the family dog.” Plushner, 429 A.2d at 445. The court went on to state:
*176 [I]f service had been made upon defendant’s daughter at a time when she had no other residence than defendant’s abode, she would have been considered a trusted member of his household. . . . She would have been considered a person "residing therein” under a strict reading of Rule 4(d)(1).
The defendant’s daughter now has a separate residence. . . . The facts clearly indicate that she was placed in charge of the dwelling in her father’s absence. Further, it is apparent that she was still considered a trusted member of defendant’s household because she had a key and could come and go as she pleased. Finally, on the day process was served she was at defendant’s house on family business.
Plushner, 429 A.2d at 446 (emphasis added). It concluded that "[i]t [service] was 'reasonably calculated to give [defendant] knowledge of the proceedings and an opportunity to be heard.’ ” Plushner, 429 A.2d at 446 (quoting NLRB v. Clark, 468 F.2d 459, 464 (5th Cir. 1972) (quoting NLRB v. O’Keefe & Merritt Mfg. Co., 178 F.2d 445 (9th Cir. 1949)).
Similar to the situation in Plushner, delivery of the summons to TerHorst was reasonably calculated to give Estes knowledge of the proceeding against him so that he would have an opportunity to respond and be heard. Like the person with whom the summons was left in Plushner, Ter-Horst had a key to Estes’s home, she could come and go as she pleased and she was taking care of the defendant’s mail and his dog. It is readily apparent, in short, that Estes considered TerHorst to be an individual he could trust to be in charge of his household during his absence. By delivering the summons to TerHorst during the time she was in possession of the residence, service was effected on Estes comporting with due process requirements and complying with RCW 4.28.080(15). I dissent.
Smith, Johnson, and Sanders, JJ., concur with Alexander, J.
Reconsideration denied October 30, 1997.
