Campbell v. Bartlett

• Decision Date: 06 October 1992
• Docket Number: 88-2854,Nos. 88-2711,s. 88-2711
• Citation: 975 F.2d 1569
• Parties: Charles Keith CAMPBELL, Plaintiff-Appellee/Cross-Appellant, and Alice Campbell, Plaintiff-Appellee, v. William L. BARTLETT; Roy Garrison; Harold Chandler; R.E. Garrison Trucking, Inc.; United States Fire Insurance Company, Defendants-Appellants/Cross-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1569

975 F.2d 1569

Charles Keith CAMPBELL, Plaintiff-Appellee/Cross-Appellant and Alice Campbell, Plaintiff-Appellee, v. William L. BARTLETT; Roy Garrison; Harold Chandler; R.E Garrison Trucking, Inc.; United States Fire Insurance Company Defendants-Appellants/Cross-Appellees.

Nos. 88-2711, 88-2854.

United States Court of Appeals Tenth Circuit.

Oct. 6, 1992.

John A. Klecan of Butt, Thornton & Baehr, P.C., Albuquerque, N.M. (David M. Houliston of Butt, Thornton & Baehr, P.C., with him on the brief), for defendants-appellants/cross-appellees.

Lisa K. Durrett of Durrett, Jordon & Durrett, P.C., Alamogordo, N.M. (Charles W. Durrett of Durrett, Jordon & Durrett, P.C., with her on the brief), for plaintiff-appellee/cross-appellant.

Before ANDERSON, HOLLOWAY, and EBEL, Circuit Judges.

HOLLOWAY, Circuit Judge.

The defendants-appellants, William L. Bartlett, R.E. Garrison Trucking, Inc. (Garrison Trucking), and the United States Fire Insurance Co. (USFIC), appeal from a judgment that the trial court entered following a jury verdict in favor of the plaintiff-appellee, Charles Keith Campbell, in a negligence action, and from an order that the trial court entered denying the defendants' motions for a new trial and for a judgment notwithstanding the verdict. In a cross- appeal, Campbell appeals from a directed verdict, the result of which was to remove from the jury's deliberations Campbell's claim against Garrison Trucking for punitive damages. ¹ We affirm.

I

As he delivered a truckload of meat from Iowa to Arizona on October 18, 1986, Campbell's vehicle collided with another tractor-trailer rig in an accident in New Mexico. At dusk, just southwest of Alamogordo on highway U.S. 70, Campbell noticed that another westbound truck in the right-hand lane ahead of him was beginning to turn onto the shoulder. I Supp.R. 41, 43. As Campbell changed to the left lane in order to pass, the other driver, Bartlett, began to make a U-turn across the four-lane highway. Id. at 44. When Campbell was unable either to brake his truck or to steer out of the path of the other vehicle, the two tractors collided. Id. at 44-46.

Smelling a strong odor of alcohol in the back of an ambulance, a New Mexico state police officer placed Bartlett under arrest. II Supp.R. 306-07. The officer subsequently cited Bartlett for traffic offenses including driving while intoxicated, or "DWI." Id. at 311-12. A blood test showed that Bartlett's blood contained ".15 grams percent of alcohol"; a toxicologist estimated that Bartlett's blood alcohol content at the moment the accident occurred had been 0.18. Id. at 282, 285. Shortly after the accident, Bartlett disappeared from an Alamogordo hospital.

In June 1987, Campbell filed this diversity action against Bartlett and Bartlett's employer, Garrison Trucking, in the United States District Court for the District of New Mexico. Campbell alleged that the wreck had resulted from Bartlett's negligence, and that the trucking firm was liable for the negligence of its employee. I R.Doc. 1. ² Bartlett was not served personally with the summons and complaint, and the attorneys who represented him were unable to obtain either his assistance in preparing a defense or his attendance at the two-day jury trial in July 1988. I Supp.R. 4.

Prior to trial, all defendants stipulated as to liability for negligence, leaving only the issue of compensatory and punitive damages to be tried. At trial, the jury awarded Campbell $150,000 in compensatory damages against Bartlett and Garrison Trucking as well as $50,000 in punitive damages against Bartlett. I R.Doc. 104. ³ Under the judgment that the trial court entered: (1) Bartlett and Garrison Trucking were made liable to Campbell jointly and severally for the compensatory damages; (2) Bartlett was made liable to Campbell for the punitive damages award; and (3) USFIC was made liable for the entire damage award of $200,000. I R.Doc. 111.

II

Rule 4(c)(2)(C)(i) of the Federal Rules of Civil Procedure allows a party to serve a summons and complaint "pursuant to the law of the State in which the district court is held." Absent defendant Bartlett was served with the summons and complaint under the New Mexico Supreme Court rule that allows a party to substitute personal service with service effected by posting the summons and complaint at a defendant's "usual place of abode" and by mailing the process to "his last known mailing address." See N.M.S.Ct.R.Ann. 1-004(F)(1) (Michie 1992). ⁴

After filing this action, Campbell initially attempted to have the summons and complaint served on defendant Bartlett at the address that the truck driver had listed as his residence: Route 1, Box 364, Addison, Alabama. ⁵ Following this attempted service the defendants filed a motion to quash the service. In support of the motion, which was the second such motion filed, ⁶ the defendants submitted evidence that as a result of a foreclosure the residence at Box 364 had been vacant on the date listed on the return of service. I R. Doc. 78 (affidavit of Klein). The defendants presented further evidence that the address on the return of service was erroneous. In attempting service on Bartlett, a deputy sheriff had found the residence at Box 364 to be vacant. I R.Doc. 93, Ex. A. The deputy sheriff then had posted the summons and complaint at Box 37C, which was the residence of Bartlett's sister, rather than at the address listed on the return of service. Id. The deputy had attempted service at Box 37C because the chief deputy in the sheriff's office stated that Bartlett "sometimes lived" with the sister when he was not driving a truck. ⁷

The district judge denied the second motion to quash in a written Memorandum Opinion and Order. The judge concluded that "[i]n light of the mobile lifestyle of defendant ... service has been effected pursuant to the statute in a manner reasonably calculated to give defendant actual notice of the proceedings and an opportunity to be heard." I R.Doc. 97, at 5. The court's order also stated Campbell mailed copies to Box 364, Addison, Alabama, as Bartlett's last known mailing address, id. at 4, and no issue is raised on appeal about the sufficiency of the mailing under the rule.

On appeal the defendants present the issue of whether the evidence, including the showing that Bartlett "sometimes lived" at his sister's residence when not on the road, was sufficient to establish that her home was his "usual place of abode," and whether the posting at such abode satisfied due process. ⁸ Because the appellants' challenge to the sufficiency of the service involves the determination of whether facts--the frequency and nature of Bartlett's visits to his sister's residence--satisfy a prescribed standard--"usual place of abode"--it is a mixed question of fact and law. ⁹ Similarly, the appellants' challenge to the attempted service on the basis that it did not satisfy due process raises an issue of whether the facts satisfy a legal standard. A review de novo is appropriate because the mixed questions involve solely a "consideration of legal principles" rather than factual issues. ¹⁰

Our question is whether the home of Bartlett's sister qualified as his "usual place of abode." The defendants rely in part upon the requirement of a strict construction of the substituted service rule. Moya v. Catholic Archdiocese, 92 N.M. 278, 587 P.2d 425, 426 (1978). The defendants have argued that under a strict construction of the rule the chief deputy's statement concerning Bartlett's sometimes living at his sister's residence when not on the road was inadequate evidence as a matter of law to establish that her home was his "usual" place of abode. In response, Campbell has adopted a broader reading of the term "usual place of abode." Campbell has argued that the sister's residence was Bartlett's "usual" place of abode in view of the overall circumstances--the defendant was a truck driver whose residence recently had been foreclosed, who was in trouble with the law, and who may not have resided at any permanent address more frequently than he did at his sister's residence.

We agree with the trial judge that the term "usual place of abode" should be construed "in light of the mobile lifestyle of defendant." The New Mexico Supreme Court has defined the term "usual place of abode" as "the customary place of abode at the very moment the writ is left posted." Vann Tool Co., 566 P.2d at 95. In general, the New Mexico Supreme Court has recognized that "usual place of abode" is a concept that must be "decided on the specific facts of each case." Household Fin. Corp. v. McDevitt, 84 N.M. 465, 505 P.2d 60, 61 (1973). Moreover, the term "usual" is not irrelevant because it "has significance and must be given consideration." First Nat'l Bank & Trust Co. v. Ingerton, 207 F.2d 793, 794 (10th Cir.1953).

Campbell presented the trial court with the uncontroverted evidence that at the time of the posting Bartlett was living at least "sometimes" with his sister. The chief deputy stated that Bartlett "sometimes lived" with his sister. First, the deputy's use of the word "lived" rather than words such as "stayed" or "visited" is important because it suggested a relatively more significant arrangement. Bartlett acknowledged at the time of the accident that he could be difficult to contact; he told a New Mexico State Police officer that he was "more likely" to receive mail sent to the Lordsburg truck stop than mail sent to his listed Alabama residence. I R.Doc. 93, Ex. D. The circumstances suggest that at the time of the service, Bartlett may have been leading an even more transient lifestyle than usual; his most recent address known to the parties was vacant as a result of a foreclosure, I R.Doc. 78, and he faced an outstanding bench warrant in New Mexico, I R.Doc. 20, Ex. C. And, the deputy's affidavit indicated that Bartlett's living arrangement with his sister continued at the time of the posting.

While...