Luyet v. Ehrnfelt

• Decision Date: 17 March 1993
• Citation: 118 Or.App. 635,848 P.2d 654
• Parties: Cathi E. LUYET, Appellant, v. Albert Edward EHRNFELT, Respondent. C901281CV; CA A73372.
• Court: Oregon Court of Appeals

Page 654

848 P.2d 654

118 Or.App. 635

Cathi E. LUYET, Appellant, v. Albert Edward EHRNFELT, Respondent.

C901281CV; CA A73372.

Court of Appeals of Oregon.

Argued and Submitted Dec. 9, 1992.

Decided March 17, 1993.

Kathryn H. Clarke, Portland, argued the cause and filed the briefs for appellant.

Jerry K. Brown, McMinnville, argued the cause for respondent. With him on the brief was Cummins, Brown, Goodman, Fish & Peterson, P.C., McMinnville.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

EDMONDS, Judge.

Plaintiff appeals from a judgment after a trial to the court on defendant's affirmative defense that he was not served within the statute of limitations. The court held that the service of summons on defendant was inadequate under ORCP 7 D. ¹ We reverse.

It is undisputed that, on December 17, 1990, five days before the applicable statute of limitations was to run, plaintiff filed a complaint alleging that defendant negligently caused an automobile accident. On January 23, 1991, she left a copy of the summons and complaint with a nonresident friend of defendant who was working at defendant's home. ² On February 4, 1991, she mailed a copy of the summons and complaint to defendant at his residence, pursuant to ORCP 7 D(2)(a). On February 13, 1991, she served the Motor Vehicles Division (MVD), pursuant to ORCP 7 D(4)(a)(i). The 60-day deadline for service under ORS 12.020(2) expired on February 15, 1991. ³

Plaintiff argues that the service to defendant was reasonably calculated to apprise defendant of the lawsuit and was therefore effective under ORCP 7 D(1). Defendant argues to the contrary, pointing out that the mailing of the summons and complaint to defendant preceded the service on MVD. He says that, if the prescribed order of service under ORCP 7 D(4)(a) is disregarded, there is no reasonable expectation that service would be effected. ⁴ The determination of whether the service was "reasonably calculated" to apprise defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend is a question of law.

ORCP 7 D(1) sets forth a "reasonable notice" standard for determining adequate service of summons. It provides:

"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. * * * "

Under this rule, the court examines the totality of the circumstances to determine if the service of summons was reasonably calculated to provide a defendant with notice of the action and a reasonable opportunity to appear and defend. Baker v. Foy, 310 Or. 221, 225, 797 P.2d 349 (1990). ⁵

Plaintiff served MVD, defendant's statutorily appointed agent for service, pursuant to ORCP 7 D(4)(a)(i). ⁶ In addition, plaintiff mailed a copy of the summons and complaint to defendant at his residence pursuant to ORCP 7 D(2)(d). ⁷ Under the circumstances, we do not find it significant to our analysis under ORCP 7 D(1) that the mailing to defendant's home occurred before the service on MVD. Defendant resided at the address to which plaintiff mailed the summons and he does not contend that MVD had additional addresses to which plaintiff should have mailed the summons. Also, he does not assert that he was prejudiced in any way by the sequence of service on the MVD and on him. Moreover, this is not a case in which defendant's discovery of the existence or pendency of the action was by "happenstance" or "fortuity." ⁸ We hold that the method of service used by plaintiff was reasonably calculated to apprise defendant of the existence and pendency of the action and afforded defendant a reasonable opportunity to appear and defend and, therefore, was adequate under ORCP 7 D(1).

Because of the basis of our disposition, we do not address plaintiff's other assignment of error.

Reversed and remanded.

1 Defendant filed a motion for summary judgment and an answer at the same time, both asserting in essence that plaintiff failed to make adequate service before the statute of limitations ran. The motion for summary judgment appears first in the trial court file. Plaintiff does not argue that defendant waived his right to challenge the adequacy of service by filing a simultaneous summary judgment motion and answer, and we do not address that issue. See Spada v. Port of Portland, 55 Or.App. 148, 637 P.2d 229 (1981).

2 This service did not comply with ORCP 7 D(2)(b).

3 ORS 12.020(2) provides:

"If the first publication of summons or other service of summons in an action occurs before the expiration of 60 days after the date on which the complaint in the action was filed, the action against each person of whom the court by such service has acquired jurisdiction shall be deemed to have been commenced upon the date on which the complaint in the action was filed."

4 In Campos v. Chisholm, 110 Or.App. 158, 821 P.2d 1121 (1991), the plaintiff attempted service under ORCP 7 D(4)(a). The plaintiff served the MVD. However, he did not inquire of the MVD as to the defendant's "most recent address," but instead mailed the summons to the defendant's address at the time of the accident. Between the time of the automobile accident and the attempted service, the defendant had moved. We held that the service was ineffective under both ORCP 7 D(4)(a) and 7 D(1). But see Korgan v. Gantenbein, 74 Or.App. 154, 158, 702 P.2d 427 (1985).

5 The court said:

"Any errors in 'the form of summons, issuance of summons, and the person who may serve the summons,' which are not ignored by the court because defendant did not have actual notice, see ORCP 7 G (first sentence) and Jordan v. Wiser, [302 Or. 50, 59, 726 P.2d 365 (1986) ] quoting with approval Council on Court Procedures, Staff Comment to Rule 7, Merrill's Oregon Rules of Civil Procedure: 1986 Handbook 6, and any error in 'the content of or service of summons' which has not been corrected by amendment as permitted by ORCP 7 G (second sentence), or that materially prejudices the substantive rights of the defendant, see ORCP 7 G (second sentence), Lake Oswego Review v. Steinkamp, [298 Or. 607, 614-15 n. 2, 695 P.2d 565 (...