Collins v. Lomas & Nettleton Co., 8229-9-I
| Decision Date | 26 May 1981 |
| Docket Number | No. 8229-9-I,8229-9-I |
| Citation | 628 P.2d 855,29 Wn.App. 415 |
| Court | Washington Court of Appeals |
| Parties | John COLLINS and Geraldine Collins, his wife, Appellants, v. LOMAS & NETTLETON COMPANY, a corporation, formerly doing business as Northwest Mortgage, a corporation, and d/b/a Northwest Bonded Escrows; Eastern Savings Bank, a corporation, formerly Bronx Savings Bank; Lenore M. Paschal and John Doe Paschal, her husband; William Bishop, Jr., and Jane Doe Bishop, his wife; William W. Edwards, and Jane Doe Edwards, his wife, B. H. Camperson and Jane Doe Camperson, his wife, all individually and as partners in Dodd, Hamlin & Coney, P.S.; and R. Hays Goddard and Jane Doe Goddard, his wife, Respondents. |
John Caughlan, Seattle, for appellants.
Andrew C. Gauen and Lee Corkrum, Seattle, R. Hays Goddard, Redmond, for respondents.
John and Geraldine Collins appeal from an order dismissing the defendants Dodd, Hamlin & Coney, P. S.; William L. Bishop, Jr. and Jane Doe Bishop; William W. Edwards and Jane Doe Edwards; Robert E. Ordal and Jane Doe Ordal; and B. H. Camperson and Jane Doe Camperson. These named individuals were attorneys with the law firm of Dodd, Hamlin & Coney, P. S. at the time this lawsuit was commenced.
The plaintiffs, acting on their own behalf, filed a 17-page complaint on January 28, 1978, alleging fraudulent misrepresentation, usury, malpractice and various other wrongs which caused the plaintiffs the loss of real property. Named as defendants were the Lomas & Nettleton Company, some of its officers, the law firm and certain individual attorneys of Dodd, Hamlin & Coney, P. S., and the plaintiffs' former personal attorney, R. Hays Goddard.
The plaintiffs failed to serve the defendants properly within 90 days of the date of filing the complaint. All named defendants entered general appearances during February 1978 notwithstanding the lack of proper notice. On April 4, 1978, defendants Dodd, Hamlin & Coney, P. S., and Edwards, Bishop, Ordal and Camperson (hereinafter referred to as the law firm), moved to dismiss under CR 12(b)(5) and (6) for insufficiency of service of process and failure to state a claim upon which relief could be granted. The plaintiffs then retained counsel and upon agreement of the parties, the motion was not pursued while plaintiffs' counsel reviewed the case. The defendants, except Robert E. Ordal and Jane Doe Ordal were served with process properly during April and May 1978. No responsive pleading has been filed by the law firm.
No further action was taken until May 23, 1979, when the plaintiffs filed an amended complaint. The plaintiffs alleged that the law firm, as attorneys for the Lomas & Nettleton Company, commingled mortgage payments made by the plaintiffs on two parcels of real estate and failed to credit those payments to the proper account, thereby causing both mortgages to become delinquent. Foreclosure proceedings were commenced on both properties, and one lot was sold.
The law firm moved to dismiss the complaint and amended complaint on June 11, 1979, for lack of proper service and failure to state a claim for relief. The motion was noted for June 21, 1979, and notice was sent by certified mail to the plaintiffs. The plaintiffs failed to appear at the hearing, and the motion to dismiss was granted. On August 22, 1979, the plaintiffs moved to set aside the order of dismissal, arguing that they did not receive notice of the hearing. The evidence at the hearing showed that the plaintiffs failed to respond to postal service notices that certified mail was being held for them and that the notice was eventually returned to the law firm some time after the order of dismissal had been entered. The trial court declined to set aside the dismissal.
The plaintiffs first contend that service of pleadings and papers by certified mail is insufficient and deprives them of due process. We disagree. CR 5(b) (2)(A) provides: "If service is made by mail, the papers shall be deposited in the post office addressed to the person on whom they are being served, with the postage prepaid." The law firm complied with this rule. We find no justification for precluding the use of certified mail absent express language to that effect. The use of certified or registered mail may be superior, in fact, to service by first-class mail since certification assures that the postmark, which determines the time of mailing, is accurate. See 4 C. Wright & A. Miller, Federal Practice and Procedure § 1148 (1969). The test for legal sufficiency of notice is whether it is "reasonably calculated to reach the intended parties." In re Saltis, 25 Wash.App. 214, 607 P.2d 316 (1980). Notice by certified mail satisfies this test.
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...to serve a defendant within ninety days of the date of filing in order for the commencement to be complete. Collins v. Lomas & Nettleton Co., 29 Wash.App. 415, 628 P.2d 855 (1981); Adkinson v. Digby, Inc., 99 Wash.2d 206, 660 P.2d 756 (1983); Sidis v. Brodie/Dohrmann, Inc., 117 Wash.2d 325,......
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...as being inapplicable when both service and filing are accomplished within the limitation period. See Collins v. Lomas & Nettleton Co., 29 Wash.App. 415, 418-19, 628 P.2d 855 (1981); Hansen v. Watson, 16 Wash.App. 891, 892-93, 559 P.2d 1375, review denied, 88 Wash.2d 1018 (1977). Thus, so l......
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...Baker v. Altmayer, 70 Wn. App. 188, 851 P.2d 1257, review denied, 122 Wn.2d 1024 (1993).[29] In Collins v. Lomas & Nettleton Co., 29 Wn. App. 415, 628 P.2d 855 (1981), the court found that service of the defendant law firm's motion to dismiss the complaint by certified mail satisfied due pr......
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§3.7 Significant Authorities
...the statute of limitations actually runs. Seamans v. Walgren, 82 Wn.2d 771, 776, 514 P.2d 166 (1973); Collins v. Lomas & Nettleton Co., 29 Wn.App. 415, 418, 628 P.2d 855 (1981). If service is accomplished more than 90 days after filing of the complaint, it must be accomplished within the st......
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§5.6 Analysis
...with postage prepaid. First class mail is sufficient; certified mail is permissible but unnecessary.See Collins v. Lomas & Nettleton Co., 29 Wn.App. 415, 417, 628 P.2d 855 (1981). "Mail" as used in CR 5 refers to the United States Postal Service. Delivery via private courier such as UPS or ......
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§5.7 Significant Authorities
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