Baker v. Foy

• Decision Date: 16 August 1990
• Citation: 310 Or. 221,797 P.2d 349
• Parties: Donald C. BAKER, Respondent on Review, v. Maryanne FOY, Defendant (below), and Patrick Foy, Petitioner on Review. TC A8803-01197; CA A50641; SC S36754.
• Court: Oregon Supreme Court

Page 349

797 P.2d 349

310 Or. 221

Donald C. BAKER, Respondent on Review, v. Maryanne FOY, Defendant (below), and Patrick Foy, Petitioner on Review.

TC A8803-01197; CA A50641; SC S36754.

Supreme Court of Oregon.

Argued and Submitted April 12, 1990.

Decided Aug. 16, 1990.

[310 Or. 222-A] Duane Vergeer, of Vergeer, Roehr & Sweek, Portland, argued the cause and filed the petition for petitioner on review.

Philip M. Lebenbaum, of David J. Hollander & Associates, Portland, argued the cause and filed a response to the petition for respondent on review.

Before PETERSON, C.J., and CARSON, JONES, ^* GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ.

UNIS, Justice.

The issue in this case is whether there was adequate service of summons on defendant under Rule 7 of the Oregon Rules of Civil Procedure (ORCP) before the running of the applicable statute of limitations. We hold that there was not adequate service of summons. We reverse the decision of the Court of Appeals, which held that service was adequate, and affirm the judgment of the trial court, which held that service was not adequate.

On March 3, 1988, two days before the applicable statute of limitations was to run, plaintiff filed a complaint based on negligence, seeking money damages from defendant and defendant's mother. ¹ Plaintiff, in his complaint, alleged that he suffered personal injuries on March 5, 1986, due to defendant's negligent operation of defendant's mother's vehicle. On the same date the complaint was filed (March 3, 1988), a process server served a copy of the summons and complaint on defendant's mother at her residence and also handed her a copy of the summons and complaint directed to defendant to appear and defend. Defendant, who was 17 years old at that time (March 3, 1988), had not lived at his mother's residence since August 1985, although he told the investigating officers at the scene of the accident that he lived at his mother's residence. ² On April 5, 1988, plaintiff's attorney sent a true copy of the summons and complaint by certified mail, return receipt requested, to defendant at the address of his mother's residence. Later, defendant learned of plaintiff's claim when he read the complaint that had been left with his mother. ³ At the time the process server left a copy of the summons and complaint for defendant with defendant's mother, defendant continued to receive mail at his mother's address. Motor Vehicles Division records showed defendant and his father as the registered owners of the vehicle involved in the accident and showed defendant's mother's address.

Defendant moved for summary judgment, claiming that he was not properly served with the summons and complaint. The trial court relied on Jordan v. Wiser, 302 Or. 50, 726 P.2d 365 (1986), and granted defendant's motion for summary judgment. ⁴ The trial court found "[t]hat at the time of service upon defendant['s mother], [defendant] was not a resident of the household of [his mother] and did not reside at [that] address."

The Court of Appeals, relying on our decision in Lake Oswego Review v. Steinkamp, 298 Or. 607, 695 P.2d 565 (1985), held that defendant had been properly served because the service was reasonably calculated to apprise defendant of the pendency of the action. Baker v. Foy, 99 Or.App. 410, 414, 782 P.2d 439 (1989). Presiding Judge Buttler dissented, believing that this case is a clone of Jordan v. Wiser, supra, that there had been no service of summons on defendant and that, therefore, actual notice did not cure defective attempted service. 99 Or.App. at 414-415, 782 P.2d 489.

We granted defendant's petition for review to determine whether valid service had been made and whether the relationship between Jordan v. Wiser, supra, and Lake Oswego Review v. Steinkamp, supra, needs clarification.

Under ORCP 4, an Oregon court does not have jurisdiction over a defendant unless there is service of summons pursuant to ORCP 7. Adequate service of summons is required to prevent the running of the applicable statute of limitations. See ORS 12.020.

The pertinent provisions of ORCP 7 relating to service of summons are set out at length in the Appendix to this opinion and will be referred to as appropriate.

ORCP 7 D(1) sets forth a "reasonable notice" standard ⁵ for determining adequate service of summons: "Summons shall be served * * * 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 appear and defend. * * * " (Emphasis added.) ⁶ Rather than requiring a particular manner of service to satisfy the standard of adequate service, the rule endorses the process of examining the totality of the circumstances, to determine if the service of summons was reasonably calculated to provide defendant with notice of the action and reasonable opportunity to appear and defend. Lake Oswego Review v. Steinkamp, supra, 298 Or. at 611, 695 P.2d 565.

To provide guidance for types of service that may meet the "reasonable notice" standard of adequate service, ORCP 7 D(1) lists specific methods of service of summons. Merrill, Jurisdiction and Summons in Oregon 138, § 2.02 (1986). The particular methods of service described in ORCP 7 D(2) are methods which may be used. ORCP 7 D(1). They are not exclusive. ⁷ Absolute compliance with one of the methods of service specified in ORCP 7 D(1) is, therefore, not required for adequate service of summons on an individual defendant. See Lake Oswego Review v. Steinkamp, supra, 298 Or. at 613, 695 P.2d 565 (service by mail upon an individual defendant different than the service by mail illustrated in ORCP 7 D(2)(d) held valid service). What is mandatory is that whatever manner or method of service is employed by a plaintiff, it must satisfy the aforementioned "reasonable notice" standard of adequate service of ORCP 7 D(1).

Service of summons on an individual defendant in accordance with personal service, see ORCP 7 D(2)(a), substituted service, see ORCP 7 D(2)(b), or office service, see ORCP 7 D(2)(c), ⁸ is presumptively adequate service, i.e., it is presumed to be service reasonably calculated, under all the circumstances, to apprise defendant of the pendency of the action and to afford defendant a reasonable opportunity to appear and defend. ⁹

ORCP 7 D(2) describes how each of the specified methods of service listed in ORCP 7 D(1) may be made, and ORCP 7 D(3) prescribes when the particular methods of service may be used for particular defendants. For example, ORCP 7 D(3)(a)(i) sets forth the permissible methods of service upon an individual defendant ¹⁰ and the preferences that exist among those different approved methods of service.

ORCP 7 E lists the qualifications a person must possess before that person can be authorized to serve summons.

ORCP 7 F(4) describes the effect of failure to make or file a proper proof of service.

ORCP 7 G provides direction to a court in the event there is a failure to comply with certain provisions of ORCP 7.

This court examined ORCP 7 in Lake Oswego Review v. Steinkamp, supra. In that case, the plaintiff mailed the summons and complaint to an individual defendant at a particular address, certified, return receipt requested (restricted delivery). The letter carrier knew the defendant and delivered the summons and complaint to defendant at a different address and had him sign for it. This court held that service was valid under ORCP 7. The court found that, even though the service upon the defendant was different than the "service by mail" illustrated by ORCP 7 D(2)(d), it was reasonably calculated to give notice to the defendant and therefore adequate. Id. at 614, 695 P.2d 565.

The next case to involve the interpretation and application of ORCP 7 by this court was Jordan v. Wiser, supra. In Jordan, a process server attempted to make substituted service upon the defendant by leaving certified copies of the summons and complaint with the defendant's mother at her residence in Oregon. At that time, the defendant resided in the State of Washington. A week or two later, the defendant's mother called the defendant and told him that she had been served with summons. On her own initiative, she then drove to Washington and attempted to hand the summons and complaint to the defendant, who refused to accept them.

The Jordan court first determined that at the time the defendant's mother had attempted to give the defendant the summons and complaint, she had not been authorized by the plaintiff or the plaintiff's attorney to serve the summons. The court concluded that, because the attempted service of summons was by a person who was unauthorized to make service, no service had been accomplished. 302 Or. at 58, 726 P.2d 365 ("[t]he attempted service of summons by an unauthorized person is not a mere defect in service, it is no service").

The Jordan opinion nonetheless then addressed the effect of the defendant's receipt of actual notice of the action on whether there had been adequate service under the "reasonable notice" standard of ORCP 7 D(1). The court noted that actual notice by itself does not necessarily constitute adequate notice and adequate notice does not require actual notice. The court then concluded that the voluntary delivery of the summons to the defendant by his mother was not service in "a manner reasonably calculated to apprise the defendant of the existence and pendency of the action." Id. at 60, 726 P.2d 365.

As we implied in Jordan, service of summons by a person authorized by plaintiff or plaintiff's attorney is contemplated, although not expressly, by ORCP 7. 302 Or. at 56-58, 726 P.2d 365. But our conclusion in Jordan that service of summons by an unauthorized person is "no service" and inadequate as a matter of law is overstated. Such a conclusion does not sufficiently take into account the "reasonable notice" standard expressly set forth in ORCP 7 D(1),...