Clay v. Portik, 19542-9-II

• Decision Date: 10 January 1997
• Docket Number: No. 19542-9-II,19542-9-II
• Citation: 929 P.2d 1132,84 Wn.App. 553
• Court: Washington Court of Appeals
• Parties: CLAY, a single person, Appellant, v. Michael J. PORTIK and "Jane Doe Portik," husband and wife, and the Washington marital community composed thereof, Respondents.

Page 553

84 Wn.App. 553

929 P.2d 1132

CLAY, a single person, Appellant, v. Michael J. PORTIK and "Jane Doe Portik," husband and wife and the Washington marital community composed thereof, Respondents.

No. 19542-9-II.

Court of Appeals of Washington Division 2.

Jan. 10, 1997.

As Amended Feb. 7, 1997.

[929 P.2d 1133] Cindy Lopez Burdue, Costa Rica, for Appellant.

Sara Ellen 'Sally' Metteer, David Michael Jacobi, Wilson, Smith, Cochran & Dickerson, Seattle, WA, for Respondents.

Chief Judge.

Lolita Clay challenges the Secretary of State's interpretation of the nonresident service of process

statute ,RCW 46.64.040. We hold that the statute does not require a plaintiff seeking to use the statute to provide the Secretary with the defendant's address or with a certificate of compliance signed by the plaintiff personally, rather than by the plaintiff's attorney. Consequently, we reverse the trial court's dismissal of Clay's action and remand for trial

FACTS

On July 6, 1991, Portik drove into Clay's car, injuring her and damaging her vehicle. Clay filed a lawsuit against Portik on June 30, 1994, six days before the running of the three-year statute of limitations. RCW 4.16.080(2). Pursuant to RCW 4.16.170, Clay had an additional 90 days to complete service.

Portik had been residing at 3008 N. Narrows Drive in Tacoma but had moved out of state before Clay was able to serve him. Thus, Clay attempted to serve him by using the nonresident service of process statute, RCW 46.64.040. In accordance with statutory requirements, on September 12, 1994, Clay's attorney mailed two copies of the summons and complaint along with a check for $50 to the Secretary of State's office. The attorney also mailed to Portik at his last known address, via registered mail, return receipt requested, a copy of the summons and complaint, notice of service upon the Secretary, an affidavit signed by the attorney describing the steps taken to comply with RCW 46.64.040, and a "due diligence" affidavit signed by the attorney describing her efforts to locate and personally serve Portik. The post office returned the mailing as "unclaimed."

About 19 days later, the Secretary's office returned Clay's documents and filing fee, explaining that Clay had not complied with RCW 46.64.040 because she had not included Portik's address. By this time, the statute of limitations had run. Clay's attorney later refiled the documents and provided the Secretary with Portik's Narrows Drive address moved for summary judgment asserting lack of personal jurisdiction. He argued that Clay's attempt to use the statute failed in two ways: (1) service was not timely, and (2) her attorney's affidavit of compliance failed to satisfy the statute's requirement. The trial court granted Portik's motion and dismissed the suit. On appeal, Clay argues that RCW 46.64.040 does not (a) require that a plaintiff provide the defendant's address and (b) prohibit a plaintiff's attorney from submitting an affidavit of compliance on behalf of her client.

ANALYSIS

Under CR 56(c), summary judgment is available only if "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." If, after considering all the evidence, reasonable persons would reach but one conclusion, the moving party is entitled to summary judgment. Morris v. McNicol, 83 Wash.2d 491, 494, 519 P.2d 7 (1974). On review, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). As this is an appeal from the judicial review of an administrative decision, we apply the appropriate standard of review directly to the administrative record. Keene v. Board of Accountancy, 77 Wash.App. 849, 853, 894 P.2d 582, review denied, 127 Wash.2d 1020, 904 P.2d 300 (1995).

Here, the parties do not dispute the facts; the sole issue is the proper interpretation of RCW 46.64.040. We review a legal determination of an administrative agency under an error of law standard. Jefferson County v. Seattle Yacht Club, 73 Wash.App. 576, 588, 870 P.2d 987, review denied, 124 Wash.2d 1029, 883 P.2d 326 (1994). Thus, this court may substitute its judgment for that of the Secretary. Jefferson County, 73 Wash.App. at 588, 870 P.2d 987. To obtain relief from the Secretary's action, Clay must show that the Secretary acted beyond his statutory authority in rejecting her filing. RCW 34.05.570. Although we defer to an agency's interpretation of an ambiguous statute that is within its Here, the statute is unambiguous in its lack of a requirement that a plaintiff provide the defendant's address. Thus, we do not defer to the agency regarding this ruling. Further, as the determination of when an attorney may sign for a client is not within the Secretary's special expertise, that ruling is not entitled to deference either.

                special expertise, we do not need the agency's expertise to interpret an unambiguous statute;  "we will determine the Legislature's intent from the language of the statute alone."   Waste Management of Seattle, Inc. v. Utilities & Transp. Comm'n, 123 Wash.2d 621, 628-29, 869 P.2d 1034 (1994).  Finally, we do not defer to an agency interpretation that is inconsistent with the statute or that decides the scope of its own authority.  Waste Management, 123 Wash.2d at 628, 869 P.2d 1034;   In re Electric Lightwave, Inc., 123 Wash.2d 530, 536-37, 540, 869 P.2d 1045 (1994)
                

As Clay concedes, we must strictly construe the statute. Martin v. Meier, 111 Wash.2d 471, 479, 760 P.2d 925 (1988); Omaits v. Raber, 56 Wash.App. 668, 670, 785 P.2d 462, review denied, 114 Wash.2d 1028, 793 P.2d 974 (1990). RCW 46.64.040 requires in pertinent part:

[E]ach resident of this state who, while operating a motor vehicle on the public highways of this state, is involved in any accident ... and thereafter within three years departs from this state appoints the secretary of state of the state of Washington as his or her lawful attorney for service of summons as provided in this section for nonresidents. Service of such summons or process shall be made by leaving two copies thereof with a fee established by the secretary of state by rule with the secretary of state ... or at the secretary of state's office, and such service shall be sufficient and valid personal service upon said resident or nonresident: PROVIDED, That notice of such service and a copy of the summons or process is forthwith sent by registered mail with return receipt requested, by plaintiff to the defendant at the last known address of the said defendant, and the plaintiff's affidavit of compliance herewith are appended to the process, together with the affidavit of the plaintiff's attorney that the attorney (Emphasis added.)

has with due diligence attempted to serve personal process upon the defendant at all addresses known to him or her of defendant and further listing in his or her affidavit the addresses at which he or she attempted to have process served. However, if process is forwarded by registered mail and defendant's endorsed receipt is received and entered as a part of the return of process then the foregoing affidavit of plaintiff's attorney need only show that the defendant received personal delivery by mail: PROVIDED FURTHER, That personal service outside of this state in accordance with the provisions of law relating to personal service of summons outside of this state shall relieve the plaintiff from mailing a copy of the summons or process by registered mail as hereinbefore provided. The secretary of state shall forthwith send one of such copies by mail, postage prepaid, addressed to the defendant at the defendant's address, if known to the secretary of state.

DEFENDANT'S ADDRESS

To perfect service of process under this statute, the plaintiff must: (1) deliver two copies of the summons to the Secretary of State with the required fee; (2) either personally serve the defendant with a copy of the summons and notice of service on the Secretary or send the same documents by registered mail, return receipt requested to the defendant at his last known address; (3) file an affidavit of compliance with the court; and (4) if the defendant was served by registered mail, file an affidavit of due...