Williams v. Jett

• Decision Date: 25 September 2002
• Parties: Jane Marie WILLIAMS, Appellant, v. Kristi J. JETT, M.D., Respondent.
• Court: Oregon Court of Appeals

54 P.3d 624

183 Or.App. 611

Jane Marie WILLIAMS, Appellant, v. Kristi J. JETT, M.D., Respondent.

00CV0240ST; A114621.

Court of Appeals of Oregon.

Argued and Submitted July 10, 2002.

Decided September 25, 2002.

Joel S. DeVore, Eugene, argued the cause for appellant. With him on the briefs was Luvaas, Cobb, Richards & Fraser, P.C.

Sarah R. Troutt, Salem, argued the cause for respondent. With her on the brief were Michael C. McClinton, Salem, and McClinton & Troutt LLC.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

HASELTON, P.J.

Plaintiff appeals from a summary judgment dismissing her malpractice complaint against the defendant doctor on the ground that plaintiff's claim was time barred for failure to adequately serve defendant within the applicable limitations period. Plaintiff argues that the service here was adequate under ORCP 7 D(1) because it was reasonably calculated, under the totality of the circumstances, to apprise defendant of the action, and that the trial court erred in concluding that plaintiff had failed to timely serve defendant.¹ We agree with plaintiff and, consequently, reverse and remand. For purposes of our review, the material facts are as follows. Defendant is a medical doctor specializing in gynecology and gynecological surgery. At some point before June 1998, plaintiff consulted with defendant after plaintiff experienced chronic pelvic pain. On June 1, 1998, defendant performed exploratory surgery to determine the source of that pain. During that procedure, defendant removed plaintiff's right ovary. Later that day, plaintiff was discharged from the hospital, but returned after suffering persistent and increasing pain, nausea, and chills. On June 2, 1998, another doctor performed emergency surgery on plaintiff to repair a perforation in plaintiff's small intestine that had apparently occurred during the earlier surgery performed by defendant.

On May 31, 2000, plaintiff filed this medical malpractice action against defendant. Thereafter, on Friday June 2, 2000, Deschutes County Sheriff Greg Brown delivered the summons and complaint to defendant's office, leaving the papers with the person who, according to the sheriff, was "apparently in charge." The following Monday, June 5, the sheriff completed the return of service. The next day, June 6, plaintiff filed a return of service with the court. Also on June 6, defendant's attorney sent a letter to plaintiff's counsel acknowledging receipt of the complaint and asking that plaintiff not seek a default judgment without first notifying defendant's counsel. That letter stated:

"I will be representing Dr. Jett in this case.

"I have just received a copy of the complaint you have filed but do not yet have the doctor's chart. As soon as I have it, I will review it and then enter an appropriate appearance. In the meantime, pursuant to ORCP 69, please do not apply for a default without prior written notice to me.

"I look forward to working with you on this case."²

Thereafter, plaintiff undertook no further actions to effect service on defendant. In particular, plaintiff did not send a follow-up mailing pursuant to ORCP 7 D(2)(c).

On August 30, 2000, defendant filed her answer to plaintiff's complaint, raising the affirmative defenses of insufficient service of process and failure to commence the action within the time limited by statute. ORCP 21 A(9). Defendant then moved for summary judgment on both the merits of plaintiff's action and on the ground that plaintiff's claim was time barred because plaintiff had not effected adequate service within the applicable limitations period. The trial court agreed with defendant's related insufficiency of service and statute of limitations arguments, and entered a judgment dismissing plaintiff's claims with prejudice.³

On appeal, the principal issue is whether plaintiff's efforts to serve defendant constitute adequate service for purposes of ORCP 7. Baker v. Foy, 310 Or. 221, 228-29, 797 P.2d 349 (1990), frames the inquiry. Under Baker, the court must answer two questions. First, was the method of service one of the methods described in ORCP 7 D(2) and specifically permitted for use on the particular defendant under ORCP 7 D(3)? If so, service is presumptively effective. Second, if the presumption of adequacy is rebutted or if presumptively adequate service is not accomplished, was the method of service "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"? Id.; ORCP 7 D(1). See also Davis Wright Tremaine, LLP v. Menken, 181 Or.App. 332, 337, 45 P.3d 983 (2002)

(summarizing Baker methodology).

Here, the parties agree that the answer to the first inquiry is "no." ORCP 7 D(3)(a)(i) provides that individuals can be served personally, or by substituted, office, or mail service. Nothing in the record suggests that plaintiff sought to effect personal, substituted, or mail service on defendant. Further, although the sheriff delivered the summons and complaint to defendant's office, plaintiff did not effect "office service" under ORCP 7 D(2)(c), because plaintiff failed to follow up that delivery by mailing a copy of the summons and complaint to defendant. ORCP 7 D(2)(c).⁴ Thus, the disposition of this appeal turns on Baker's second inquiry, viz., whether the method of service satisfied the "reasonable notice" standard of ORCP 7 D(1).

It is useful at the outset to emphasize what plaintiff is not arguing. Plaintiff is not arguing that the sheriff's mere delivery of the summons and complaint to the person "apparently in charge" of defendant's office was sufficient to satisfy ORCP 7 D(1). Nor is plaintiff invoking some elemental notion of actual notice—that is, that defendant's counsel's actual receipt of the pleadings and defendant's consequent ability to respond and defend excused any noncompliance with the requirements of ORCP 7 D. Accord Jordan v. Wiser, 302 Or. 50, 60, 726 P.2d 365 (1986)

(actual notice cannot make service adequate under ORCP 7 if the summons is not served in a manner reasonably calculated to apprise the defendant of the existence and pendency of the action against him or her); Murphy v. Price, 131 Or.App. 693, 699, 886 P.2d 1047 (1994),

rev. den., 321 Or. 137, 894 P.2d 468 (1995) (right to receive adequate service of summons as defined by ORCP 7 and related case law is a "substantial right" for purposes of ORCP 12 B; actual notice is insufficient to excuse noncompliance with ORCP 7).

Rather, plaintiff's argument is much more precise: ORCP 7 D(1) was satisfied without further efforts by plaintiff where (1) plaintiff undertook the first step towards presumptively sufficient office service (delivery of summons and complaint to the person "apparently in charge" at defendant's office); and then (2) during the period for reasonably completing that service by way of a follow-up mailing, but before that mailing was accomplished, defendant's counsel informed plaintiff's counsel that he had received a copy of the complaint and was preparing to enter an "appropriate appearance." As plaintiff's appellate counsel aptly acknowledged at oral argument, the premise of plaintiff's position is that, in this case, "all of the circumstances" for purposes of ORCP 7 D(1) must be viewed as a "camcorder video," and not as a "snapshot." That is, whether the method of service comported with ORCP 7 D(1) cannot be determined as of the "snapshot" moment when the summons and complaint were delivered to defendant's office on June 2. Rather, the material totality of the circumstances encompassed the entire temporal window during which the follow-up mailing would reasonably have been accomplished—at least up to, and including, June 7—and the sufficiency of service must be viewed in the light of the evolving circumstances, including defendant's counsel's letter.

Defendant, unsurprisingly, espouses the "snapshot" view. She asserts that the only circumstances that we can consider in assessing the validity of service ended with the sheriff's delivery of the summons and complaint to defendant's office on June 2, and cannot include the subsequent receipt of defendant's counsel's letter.

For the reasons that follow, we agree with plaintiff that, in this case, "all of the circumstances" for purposes of ORCP 7 D(1) includes all circumstances occurring during the period in which a follow-up mailing reasonably could have been accomplished, specifically including the receipt of defendant's counsel's June 7 letter. See Stull v. Hoke, 153 Or.App. 261, 268, 957 P.2d 173,

rev. den., 327 Or. 621, 971 P.2d 413 (1998); Korgan v. Gantenbein, 74 Or.App. 154, 702 P.2d 427 (1985). We further conclude that, when so assessed, plaintiff's method of service in those circumstances comported with ORCP 7 D(1).

In Stull, the plaintiff filed various tort claims against the defendant, Hoke, and Hoke's attorneys, including defendant Antal. The plaintiff's process server left the summons and complaint for Antal with a receptionist at Antal's law office. Shortly after delivering the papers to Antal's receptionist, the process server returned and asked if Antal had received the summons. The receptionist replied that she had delivered the papers to Antal, who was reading them. Stull, 153 Or.App. at 265, 957 P.2d 173. The plaintiff did not follow up that attempted service with a mailing, and there was "no evidence that the receptionist was Antal's authorized agent for purposes of service." Id.

The trial court granted Antal's motion to dismiss under ORCP 21 A(5) and, on appeal, we ultimately reversed that dismissal.⁵ We first noted that the plaintiff had failed to effect presumptively adequate service on Antal. Stull, 153 Or.App. at 267, 957 P.2d 173. We then went on to consider whether the plaintiff had nevertheless satisfied Baker's second prong. In assessing the totality of the circumstances, we...