Scanlan v. Townsend

• Decision Date: 30 December 2013
• Docket Number: No. 69106–6–I.,69106–6–I.
• Citation: 178 Wash.App. 609,315 P.3d 594
• Court: Washington Court of Appeals
• Parties: Theresa SCANLAN, Appellant, v. Karlin TOWNSEND and “john Doe” Townsend, wife and husband, Respondents.

178 Wash.App. 609

315 P.3d 594

Theresa SCANLAN, Appellant,

v.Karlin TOWNSEND and “john Doe” Townsend, wife and husband, Respondents.

No. 69106–6–I.

Court of Appeals of Washington, Division 1.

Dec. 30, 2013.

Thomas Edmund Jacobs, Attorney at Law, G. Parker Reich, Jacobs & Jacobs, Puyallup, WA, for Appellant.

Michael E. Abrahamson, Hollenbeck Lancaster & Miller, Bellevue, WA, for Respondents.

SCHINDLER, J.

¶ 1 Service of process is effective under RCW 4.28.080(15) where a person over the age of 18 personally delivers a copy of the summons and complaint to the defendant. Here, the defendant's father personally delivered a copy of the summons and complaint to the defendant, and there is no dispute the defendant received the pleadings and service was within the statute of limitations. Because service was effective, we reverse dismissal of the lawsuit and remand.

FACTS

¶ 2 Theresa Scanlan and Karlin Townsend were involved in a car accident on October 28, 2008. On October 27, 2011, Scanlan filed a personal injury action against Townsend. Scanlan alleged that as Townsend was turning onto 348th Street in Federal Way, she failed to yield and her Ford Taurus hit the 1999 Nissan Maxima Scanlan was driving.

¶ 3 On November 8, 2011, Scanlan asked ABC Legal Services Inc. to locate the current residential address for Townsend. Through a records search, ABC identified an address in Puyallup, Washington and an address in Vancouver, Washington. The Puyallup address “appeal[ed] on an SSN¹ Address trace for the Defendant reported 05/2011” and the United States Postal Service confirmed mail delivery for Townsend at the Puyallup address. Court records showed that Townsend lived at the Vancouver address 2124 NE 155th Street, Vancouver, Washington 98686, “as of 10/04/2010.” Clark County tax assessor records listed Townsend's father Charles William Pyne as the owner of real property at the Vancouver address. Washington State Department of Licensing records showed a vehicle registered to Townsend with Pyne listed as the co-owner of the vehicle.

¶ 4 On December 8, an ABC process server attempted to serve a copy of the summons and complaint at the Puyallup address. The resident at the Puyallup address told the process server that he did not know Townsend and she did not live at that address. On December 21, the process server attempt to serve the summons and complaint at the Vancouver address. The declaration of service states that on December 21, the process server delivered two copies of the summons and complaint at “2124 NE 155th Street, Vancouver, Clark County, WA 98686” to a “co-resident, ... a person of suitable age and discretion who stated they reside at the defendant's/respondent's usual place of abode listed above.” ²

¶ 5 Three months later, Townsend filed a motion to dismiss the lawsuit for lack of service. Townsend submitted her declaration in support of the motion to dismiss. Townsend states she lived at the Puyallup address from March to October 2011 but beginning in October 2011, she has lived in Auburn. Townsend states her parents live at the Vancouver address and she has not “resided there since 1991” or “used this address as my usual abode for any reason since then.” The declaration states, in pertinent part:

4. ... I have resided at ... 6628–130th St. Ct. E., Puyallup, Washington 98373 from March 2011 to October 2011. These were rental accommodations. I purchased a home at 6317 Thomas Place SE, Auburn, Washington 98092 and have resided there since October 2011.

5. I am aware of an Affidavit of Service in this matter indicating that I was served on December 21, 2011 ... at 2124 NE 155th Street, Vancouver, WA 98686 by leaving the documents with [my father].

6. This is my parents['] address and I have not resided there since 1991. I have not used this address as my usual abode for any reason since then. I would visit my parents at their address 2–3 times a year. My usual abode at the time of attempted service was my home at 6317 Thomas Place, SE, Auburn, Washington.

¶ 6 In opposition to the motion to dismiss, Scanlan submitted a declaration from an ABC investigator describing the efforts to locate a residential address for Townsend and an amended declaration of service from the process server. The amended declaration states that the man who answered the door at the house in Vancouver identified himself as Townsend's father, told her that Townsend was staying there, and agreed to “take the documents and make sure [Townsend] got them when she gets back.” The amended declaration of service states, in pertinent part:

On the 21st day of December, 2011, at approximately 4:40 PM, I arrived at the address of 2124 NE 155TH Street, VANCOUVER, Clark County, WA 98686. I knocked on the front door and a gray-haired white male ... opened the door.... I asked him if Karlin Townsend was there and he replied she was not. I recall saying I had some paperwork for her and asking him if she lived there and he respond[ed] that she was staying there. He was very talkative and friendly, and I do believe I recall him also mentioning Karlin came back to live with us. I told him that I had some paperwork for her and this was the address I was given, I then asked if I could leave the documents with him. He replied he would take the documents and make sure she got them when she gets back. When I asked his name, he put out his hand to shake, said he was her father.... I shook his hand as I gave him my name, and then left.

On the 21st day of December, 2011, at 4:49 PM, at the address of 2124 NE 155TH Street, VANCOUVER, Clark County, WA 98686, this declarant served the above described documents upon KARLIN TOWNSEND and JOHN DOE TOWNSEND by then and there personally delivering 2 true and correct copy(ies) thereof, by then presenting to and leaving the same with John Doe, CO–RESIDENT/FATHER, a gray-haired white male ..., a person of suitable age and discretion who stated they reside at the defendant's/respondent's usual place of abode listed above.[[³

¶ 7 Scanlan argued that by serving Townsend's father at her usual place of abode, service of process on Townsend was effective. Scanlan asserted the amended declaration of the process server showed that Townsend was living with her parents at the Vancouver address on December 21, 2011. Scanlan argued the court should deny the motion to dismiss. In the alternative, Scanlan requested the court conduct an evidentiary hearing or continue the hearing to allow the parties to engage in discovery. The trial court granted the request to continue the hearing to conduct discovery.

¶ 8 During her deposition, Townsend admitted her father delivered a copy of the summons and complaint to her at the end of December 2011 or in early January.

Q. ... Did—did you get documents from your dad?

A. They told me that they were there.

Q. Well, when this all occurred, December of 2011, what were you doing? Were you employed at that point?

A. I was working.

Q. Okay. And living where?

A. In Seattle, up here.

Q. Were you visiting your parents often during that period of time?

A. No.

Q. Well, this was just four days before Christmas. Had you—did you spend—

A. I don't always have holidays off. I don't ... have every holiday off.

Q. Okay. Do you know if you worked Christmas Day 2011?

A. Yeah, I believe I worked. Yes. I'm sorry.

Q. [The declaration of service] goes on to state, He replied he would take the documents and make sure she got them when she get[s] back. Did he give you those documents?

A. Yes, he did.

Q. Okay. And when did he give you the documents ... ?

A. I don't know.

....

Q. Okay. So after the first of the year, maybe?

A. Yeah. Yes.

Q. And would you have gone to their house, or would they have come to visit you in Seattle, or what?

A. I can't remember if they came up here. I think I went down there.

¶ 9 Following discovery, Scanlan filed an amended response to the motion to dismiss for lack of service. Scanlan argued the record established Townsend's father agreed to deliver a copy of the summons and complaint to Townsend and that he personally served her before December 30, 2011. In addition to Townsend's deposition testimony, Scanlan pointed to the amended declaration of service that states Townsend's father agreed to “take the documents and make sure [Townsend] got them,” and the notice of appearance Townsend filed on December 30, 2011.

¶ 10 In reply, Townsend submitted a declaration from her father. The declaration states that he told the process server that Townsend “did not reside at this address” and lived in the Seattle area. The declaration states, in pertinent part:

1. I am over the age of eighteen, have personal knowledge of and am competent to testify to the following. I am the father of the defendant Karlin Townsend.

2. I do recall speaking with a process server who was attempting to locate Karlin at my address which is 2124 NE 155th Street, Vancouver, WA.

3. I recall specifically telling the process server that Karlin was my daughter and that she did not reside at this address. My recollection is that I told the process server that my daughter had her own residence in the Greater Seattle area.

4. I am aware of a declaration from the Process Server that states that I may have indicated that Karlin had “come back to live with us”. I never made such a statement. In fact Karlin had recently purchased her own home in Auburn a few months previous to my conversation with the Process Server and, in any event, has not lived at my address in Vancouver, WA for a long time before the subject accident of October 28, 2008.

¶ 11 Townsend argued her father's declaration established service of process was not effective because “[t]here can be no question that the Vancouver, WA address was NOT the usual abode of Defendant Karlin Townsend (now Emerson) at the time of purported service.” ⁴ Townsend also argued that her father's “accidental service” on her did not constitute valid service of process.

¶ 12 At the...