Salts v. Estes

Alexander, J.

(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*172sion’ of the [defendant’s] premises is sufficient to satisfy the statutory residency requirement.” Majority op. at 169-70. Moreover, it attempts to distinguish Wichert, stressing the fact that the individual receiving the summons in that case was related to one of the defendants and that she had spent the night prior to service at the defendants’ home. Majority op. at 169. Those distinctions, in my view, are trifling. The fact that TerHorst was not related to Estes and did not spend a night at Estes’s home simply does not detract in any important way from the similarities between Wichert and this case. Significantly, we did not say in Wichert that in order for an individual to be "then resident,” he or she must be related to the defendant or must have spent the night previous to service at the abode. Indeed, in an earlier case we noted the unimportance, in substitute service cases, of delivery of the summons to a relative of the person upon whom service is sought, stating, "Had the legislature intended that substituted service under Rem. Rev. Stat., § 226, subd. 12, be restricted to delivery of a copy to an intended defendant’s kith or kin, it would have so stated.” Larson v. Zabroski, 21 Wn.2d 572, 575, 152 P.2d 154, 155 P.2d 284 (1945).

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 *173is consistent with Wichert where we said that the word "then” is used in reference to the time of service. Wichert, 117 Wn.2d at 151.

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 *174that in interpreting the term "resident” within the context of RCW 4.28.080(15) we should examine " 'the object or purpose of the statute in which the term is employed.’ ” Wichert, 117 Wn.2d at 151 (quoting McGrath v. Stevenson, 194 Wash. 160, 162, 77 P.2d 608 (1938)). We then concluded that the purpose of RCW 4.28.080(15) is to provide due process which, in turn, requires that " '[t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.’ ” Wichert, 117 Wn.2d at 151 (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct. 652, 94 L. Ed. 865 (1950)).

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.

*175In sum, when the facts are viewed most favorably to Salts, they lead to a conclusion that service was effected on Estes. Ter Horst was in possession of Estes’s home when the process server arrived and she answered the door in response to the process server’s knock. It is also clear that she was "looking after [Estes’s] house,” at Estes’s request, while Estes "was out of town and wouldn’t be back for a couple of weeks.” Supplemental Clerk’s Papers (SCP) at 13. TerHorst’s assigned duties included "feeding his dog[,] bringing] in the mail” and taking care of "other similar matters.” SCP at 13, 56. Because TerHorst was in charge of Estes’s home and indicated that she expressly assumed the duty of ensuring that Estes received correspondence intended for him, it was likely that Estes would have the summons transmitted to him. See 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1096, at 82-83 (2d ed. 1987); see also Hartford Fire Ins. Co. v. Perinovic, 152 F.R.D. 128 (1993) (holding that doorman at defendant’s condominium building, whose duty it was to receive delivery of packages and correspondence for tenants, was "residing therein” for purposes of service of process).

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.