Huff v. Budbill

• Decision Date: 08 June 2000
• Docket Number: No. 67619-4.,67619-4.
• Court: Washington Supreme Court
• Parties: Myrtle HUFF, Respondent, v. Gerry J. BUDBILL and Jane Doe Budbill and the marital community thereof, Petitioners.

1 P.3d 1138

141 Wash.2d 1

Myrtle HUFF, Respondent, v. Gerry J. BUDBILL and Jane Doe Budbill and the marital community thereof, Petitioners.

No. 67619-4.

Supreme Court of Washington, En Banc.

Argued October 26, 1999.

Decided June 8, 2000.

M. Colleen Barrett, Edward A. Harley, Seattle, for Petitioners.

Ronald Goldberg, Seattle, for Respondent.

ALEXANDER, J.

We are called upon to decide whether our previous decision in Martin v. Meier, 111 Wash.2d 471, 760 P.2d 925 (1988), to the effect that a plaintiff must have a reasonable basis for believing a defendant has departed the state before utilizing the procedures set forth RCW 46.64.040 as a means of effectuating substitute service of process, is still applicable. The trial court and Court of Appeals determined here, contrary to our holding in Meier, that it was unnecessary for the plaintiff to have a reasonable basis for believing that the defendant has departed the state before taking advantage of the aforementioned statute. We hold today that Meier correctly defines the requirements of the statute and, thus, before a plaintiff can invoke its provisions related to service of process, there must be a reasonable basis for believing that the defendant has departed the state. We further hold that because there are no facts in this record that provide a reasonable basis for such a belief, the plaintiff was not entitled to use the statute to effectuate service of process. We, therefore, reverse the Court of Appeals.

I. FACTS

On January 15, 1993, Myrtle Huff and Gerry Budbill were involved in an automobile accident in Seattle. The police were not summoned to the scene and an accident report was not filed. Budbill did, however, provide Huff with the address of his apartment as well as his telephone and pager numbers. Sometime thereafter, an attorney hired by Huff prepared a summons and complaint in which Huff alleged that Budbill's negligence caused the accident and resulting injury to her. Between December 22, 1995, and January 3, 1996, a process server hired by Huff's attorney made four unsuccessful attempts to serve Budbill with the summons and complaint at the address Budbill gave to Huff on the date of the accident. Two of those attempts took place in the morning hours and two were undertaken in the evening. The process server indicated that, in addition, "[f]ifteen separate attempts were made to contact Jerry [sic] J. Budbill by telephone during this two week period." Clerk's Papers (CP) at 8. The process server said that Budbill did not respond to any of the telephone messages.¹ Budbill denies having received any of the messages.

On January 16, 1996, the day the statute of limitations would have presumably extinguished Huff's cause of action against Budbill, Huff filed the summons and complaint in the King County Superior Court. This had the effect of tolling the statute of limitations for an additional 90 days.² On March 1, 1996, Budbill's attorney filed a notice of appearance "without waiving respondents' right to challenge the court's jurisdiction and service of process." CP at 5. Huff's process server then made five additional attempts to serve the summons and complaint on Budbill at the address that was given to Huff. The first of these attempts occurred on March 26, 1996, at 3:05 p.m. During this attempt, the process server spoke with the tenant in the apartment adjacent to the apartment where the process server had been attempting to serve Budbill. The tenant indicated that he was unaware of who lived in the adjacent apartment. The process server noticed that the mailbox associated with that apartment contained mail addressed to Budbill. At 2:50 p.m. on the following day, the process server made another attempt to serve Budbill, but with no success. On this occasion, the process server peered into the mailbox associated with the apartment and found an "`attempt to deliver package'" addressed to Budbill. CP at 8. On March 30, 1996, at 9:40 a.m., the process server was again unsuccessful in serving Budbill at the same location. He once more examined the contents of the mailbox and discovered two "`pick up mail'" notices. CP at 8. On March 31, 1996, at 2:30 p.m., the process server made yet another unsuccessful attempt to personally serve Budbill at the address Huff had been given. The process server made his final attempt to serve Budbill on April 1, 1996, at 9:30 a.m. As before, he was unable to effect personal service. According to the process server, "[f]rom March 25, 1996 through April 1, 1996 over 10 telephone and pager messages were left for Jerry [sic] J. Budbill." CP at 40. The process server also stated that "[n]one of these messages were ever returned." CP at 40. Budbill avers that he "never received any telephone calls or voice mail messages from any person stating that he or she was attempting to serve me with legal papers." CP at 84.

Huff's process server contacted the Department of Licensing (DOL), Directory Assistance, and the King County Assessor's office in an effort to unearth information about where Budbill was located. He was, however, unsuccessful in obtaining any information regarding Budbill's whereabouts.³ On April 9, 1996, the process server completed a "`request for change of address or box holder information needed for service of legal process'" at the United States Post Office, but discovered that Budbill had not filed a change of address form. CP at 59. On April 15, 1996, the 19th day following the filing of the summons and complaint, Huff's attorney utilized the substitute service procedures set forth in the so-called nonresident motorist statute, RCW 46.64.040, and served the summons and complaint on the secretary of state in Olympia. As dictated by the aforementioned statute, Huff's attorney filed a "due diligence" declaration with the secretary of state which stated, in part, that it was the attorney's belief that Budbill was "presently outside the State of Washington, location unknown." CP at 32. Huff's attorney also sent a copy of the summons and complaint to Budbill, via registered mail, at the address Budbill had given to Huff. The registered mail eventually was returned to Huff's attorney on May 8, 1996, as "unclaimed." CP at 60.

II. PROCEEDINGS BELOW

Budbill moved for summary judgment dismissing the lawsuit. He argued that RCW 46.64.040 could not be used as a means to serve him with process because he had not departed the state and Huff was without a good faith belief, reasonable under the circumstances, that Budbill had done so. In support of this argument Budbill stated that he has resided "at 258 E. Newton # 3, Seattle Washington ... for over six years." CP at 29. He also noted that "[f]rom December 22, 1995 to April 1, 1996, I was continuously working at DaVinci's Restaurant in Kirkland." CP at 84. Budbill additionally asserted that "I receive all of my mail at my apartment" and that "I have been a registered Washington state voter for over nine years," and have "had a Washington state driver's license for over ten years." CP at 29.

The trial court denied Budbill's motion, concluding that there were genuine issues of material fact about whether Huff had exercised due diligence in locating Budbill and whether Huff had a good faith belief Budbill had departed the state. The plaintiff moved for "clarification" of the denial of summary judgment. In granting this motion, the trial court explained that it initially believed there were material issues of fact, but concluded, after reviewing RCW 46.64.040 and this court's decisions in Martin v. Triol, 121 Wash.2d 135, 847 P.2d 471 (1993), and Martin v. Meier, 111 Wash.2d 471, 760 P.2d 925 (1988), that it was proper for Huff to utilize the substitute service provisions of RCW 46.64.040 as a means of serving Budbill with process.

After granting discretionary review, Division One of the Court of Appeals affirmed the trial court's rulings. It held that because Huff exercised due diligence in attempting to locate Budbill, she was entitled to use the nonresident motorist statute in order to obtain substitute service of process. Huff v. Budbill, 93 Wash.App. 258, 268, 969 P.2d 1085 (1998), review granted, 137 Wash.2d 1032, 980 P.2d 1283 (1999). We granted Budbill's petition for review.

III. DISCUSSION

Budbill asserts that the trial court erred in two respects. He contends that it wrongly denied his motion for summary judgment and incorrectly granted Huff's motion for clarification. In reviewing the order granting Huff's motion, we consider it equivalent to an order granting summary judgment on the issue of service of process. Although it was not denominated as such, the trial judge did determine that there were no issues of material fact and that service of the summons and complaint pursuant to the nonresident motorist statute was valid.⁴

In reviewing a grant of summary judgment, we engage in the same inquiry as the trial court. RAP 9.12; Harris v. Ski Park Farms, Inc., 120 Wash.2d 727, 737, 844 P.2d 1006 (1993). A summary judgment will be affirmed if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See CR 56(c); Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982)

. All facts and reasonable inferences are reviewed in the light most favorable to the nonmoving party, and all questions of law are reviewed de novo. Wilson, 98 Wash.2d at 437,

656 P.2d 1030. An appellate court's review of a trial court's interpretation of a statute is de novo. See Department of Labor & Indus. v. Fankhauser, 121 Wash.2d 304, 308, 849 P.2d 1209 (1993).

Budbill argues that the trial court and Court of Appeals both misinterpreted the nonresident motorist statute, and wrongly concluded that it permitted service of process on the secretary of state merely upon a showing that the plaintiff exercised "due diligence" in attempting to locate the defendant. Budbill contends that a correct analysis of the statute is that...