Sheldon v. Fettig

• Decision Date: 09 May 1995
• Docket Number: No. 13547-1-III,13547-1-III
• Citation: 893 P.2d 1136,77 Wn.App. 775
• Court: Washington Court of Appeals
• Parties: Pamela SHELDON, Respondent, v. Francine FETTIG and "John Doe" Fettig, wife and husband, and the marital community composed thereof, Petitioners.

Page 775

77 Wn.App. 775

893 P.2d 1136

Pamela SHELDON, Respondent, v. Francine FETTIG and "John Doe" Fettig, wife and husband, and the marital community composed thereof, Petitioners.

No. 13547-1-III.

Court of Appeals of Washington, Division 3 Panel Four.

May 9, 1995.

Scott A. Bruns, Dohn, Talbott, Simpson, Yakima, for petitioners.

Frank E. Morris, Morris & Church, Olympia, for respondent.

SWEENEY, Judge.

Francine Fettig appeals an order granting summary judgment to Pamela Sheldon. The court determined that Ms. Sheldon had effected valid service of process on Fettig. We granted discretionary review. Fettig contends the court erred when it concluded that a defendant may have more than one place of usual abode for service of process pursuant to RCW 4.28.080(15). ¹ We disagree and affirm the ruling.

FACTS AND PROCEDURAL POSTURE

On July 15, 1989, Fettig and Sheldon were involved in an automobile accident. On July 9, 1992, 6 days before the expiration of the 3-year statute of limitation, Sheldon filed a damage action against Fettig. On August 7, 1992, a process server, hired by Sheldon, delivered a copy of the summons and complaint to Fettig's 12-year-old brother, at her parents' home in Seattle, 13637 1st Avenue S.W. Whether her brother told the process server that his sister lived at the address is disputed; he maintains that he said she no longer lived there.

On August 19, 1991, Fettig was cited for speeding and reported her address as 13637 1st Avenue S.W. The address on Fettig's Washington driver's license appears to be her Renton address, although she had changed her mailing address to 13637 1st Avenue S.W. after vacating a Renton apartment. When attempting to locate Fettig for purposes of serving process, Sheldon's attorney contacted Fettig's insurer. He was given the telephone number of the Fettigs' Seattle home. Fettig was home when her father and counsel for Sheldon spoke about insurance coverage. Sheldon's attorney could hear her speaking in the background. In December 1991, she moved to Chicago for training as a United Airlines flight attendant.

Her car registration, however, remained in Washington; it listed her parents' Seattle address. Her automobile insurance policy listed her parents' address. Her father later sold the car, at her request. Following the sale of her car, the sales report, dated June 24, 1992, also listed her parents' address. Fettig apparently had her mail forwarded to her parents' home in Seattle, while she was on probationary status with United.

She signed a 1-year lease on a Chicago apartment, along with two other flight attendants, who share the apartment, beginning on February 1, 1992. Both of the other attendants "go home when they can." If Fettig had more than 3 days off, she went "home to Seattle". Once off probationary status, she changed her mailing address to Chicago. On December 22, 1991, she registered to vote in Washington, completing an application which required that she swear she was a Washington resident. She later testified, at deposition, that she had registered at the behest of her best friend's husband. Fettig maintains a current Washington state driver's license. She did not maintain a checking account in the state of Washington but has a savings account she started with her brother about 3 years ago with about a $20 balance. Her father informed her, by telephone, of the lawsuit after she had moved to Chicago.

Fettig's father testified that his daughter stayed at the family home for a 2-month period before she left for Chicago but that since 1989, she had lived in an apartment in Renton. There is no bedroom designated for her in the family home and when she visits she stays overnight at her boyfriend's home. She does store belongings at her parents' home.

On July 15, 1992, the statute of limitation on Sheldon's claim ran. On August 19, 1992, Fettig filed a notice of appearance through her lawyer. On September 15, 1992, she answered the complaint, alleging affirmatively improper service of process and lack of jurisdiction. Fettig subsequently moved for summary judgment based on lack of personal jurisdiction.

The trial court concluded that at the time of service Fettig was a resident of the state of Washington maintaining "two personal abodes; one at 13637 First Avenue S.W. in Seattle, Washington, and the other at an apartment in Chicago Illinois." It ruled, therefore, that substituted service at her Seattle address was valid and conferred personal jurisdiction. The court denied Fettig's motion for summary judgment and granted Sheldon's motion to strike the affirmative defense of lack of personal jurisdiction. Fettig filed a motion for discretionary review which we granted.

DISCUSSION

Several principles of law structure our analysis. First, a standard of review: this is a review from a motion granting summary judgment and review is therefore de novo. Parkin v. Colocousis, 53 Wash.App. 649, 653, 769 P.2d 326 (1989). Further, the question presented is one of law (and neither party contends otherwise)--whether Fettig's ties to the Seattle address are sufficient to qualify that residence as "a usual place of abode". Clingan v. Department of Labor & Indus., 71 Wash.App. 590, 592, 860 P.2d 417 (1993) (jurisdiction is a question of law reviewed de novo). Second, a burden of proof: one who asserts a change of residence bears the burden of proof. Freund v. Hastie, 13 Wash.App. 731, 734, 537 P.2d 804, review denied, 86 Wash.2d 1001 (1975). And finally, a canon of construction: "we so construe the statute as to give meaning to its spirit and purpose, guided by the principles of due process ...". Wichert v. Cardwell, 117 Wash.2d 148, 156, 812 P.2d 858 (1991). While this canon is at odds with the usual notions of statutory construction, ² it is our Supreme Court's latest pronouncement on the topic and we believe it is more consistent with the aims of our statutory scheme for service of process--notice and due process.

Here, the trial court found, and this record amply supports the finding, that Fettig was a resident of the state of Washington at the time Sheldon attempted to effect service. The disposition of this case turns on whether the Seattle address can be construed as a "usual place of abode" for Fettig and, necessarily, whether it is possible to have and maintain two usual places of abode. Under the limited facts of this case, we answer both questions in the affirmative.

No Washington case addresses the issue of whether a Washington resident can have two abodes for the purpose of substituted service of process. ³ In personam jurisdiction requires either service on the defendant personally or by substitute service. Lepeska v. Farley, 67 Wash.App. 548, 551, 833 P.2d 437 (1992). Substitute service is effected "by leaving a copy of the summons at the house of his usual abode with some person of suitable age and discretion then resident therein." (Italics ours.) RCW 4.28.080(15).

The term place of abode is not defined by statute. Its use, in this state, in the context of service of process, however, dates back over 140 years. Laws of 1854, § 28(5), at 136 (substitute service may be made " 'to some suitable person of the family, above the age of fourteen years, at the dwelling house or usual place of abode of the defendant' "); see Wilbert v. Day, 83 Wash. 390, 145 P. 446 (1915); Northwestern & Pac. Hypotheek Bank v. Ridpath, 29 Wash. 687, 704-06, 70 P. 139 (1902). Although the courts of this state have had occasion to construe the term, there is no hard-and-fast definition of "house of usual abode." See Allen E. Korpela, Annotation, Construction of Phrase "Usual Place of Abode," or Similar Terms Referring to Abode, Residence, or Domicil, as Used in Statutes Relating to Service of Process, 32 A.L.R.3d 112, at 127 (1970). See also Romjue v. Fairchild, 60 Wash.App. 278, 282 n. 3, 803 P.2d 57 (quoting Thoenes v. Tatro, 270 Or. 775, 529 P.2d 912, 919 (1974) (" 'usual place of abode' must be taken to mean such center of one's domestic activity ...")), review denied, 116 Wash.2d 1026, 812 P.2d 102 (1991); State v. Haley, 35 Wash.App. 96, 98, 665 P.2d 1375 (1983) (defining place of abode as "one's home, place of dwelling, residence, and/or domicile"); Freund v. Hastie, supra at 734, 537 P.2d 804 ("lived in" is the same as place of abode); Black's Law Dictionary 1544 (6th ed. 1990) (person's usual place of abode is the place "where defendant is actually living at time of service ... place where person would most likely have knowledge of service of process ...").

In Wichert v. Cardwell, supra at 152, 812 P.2d 858, our Supreme Court refused to establish a bright line rule in a case of substituted service, opting instead for "a case-to-case determination" which it concluded was required by "the fact-specific requirements of the statute." The court cited with approval language from Nowell v. Nowell, 384 F.2d 951, 953 (5th Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968), " '[T]he practicalities of the particular fact situation determine whether service meets the requirements of [Fed.R.Civ.P.] 4(d)(1).' " Wichert, at 152, 812 P.2d 858. Of particular significance to our inquiry here, the court noted that "the inquiry in any case is upon the method of attempted service, i.e., was it reasonably calculated to provide notice to the defendant?" Wichert, at 152, 812 P.2d 858. The court also noted that a second important purpose of the statute was the "benefit and protection of parties who have just claims ...". Wichert, at 152, 812 P.2d 858. The term "usual place of abode" is used in the statute because it is the place at which the defendant is most likely to receive notice of the pendency of a suit. The term therefore should be interpreted with that purpose in mind.

Recently, in Romjue v. Fairchild, supra at 282 n. 3, 803 P.2d 57, we quoted, with approval, language from the Oregon case of Thoenes v. Tatro, 529 P.2d at 919:

We...