Opinion
No. 26336-3-III.
June 17, 2008.
Appeal from a judgment of the Superior Court for Benton County, No. 06-2-02015-1, Carrie L. Runge, J., entered June 22, 2007.
Affirmed in part and reversed in part by unpublished opinion per Thompson, J. Pro Tem., concurred in by Kulik, A.C.J., and Korsmo, J.
Personal service is accomplished in one of two ways — either by delivering a copy of the summons to the defendant or by abode service, which is leaving a copy (1) at the defendant's usual abode (2) with someone of suitable age and discretion (3) then resident therein. RCW 4.28.080(15). The main issue in this case is whether abode service was accomplished under the facts. Here, service was made on an unmarried adult child by serving his father. The adult child regularly changed addresses and lived at his parents' residence, but not at the new home in which his father was ultimately served until he briefly did so after the service. We affirm that service on the father did not constitute valid abode service under RCW 4.28.080(15). We also affirm the denial of the motion to amend the complaint. We reverse the dismissal of Daisy Chapa's claim.
FACTS
On October 1, 2003, Manuel and Patricia Chapa were involved in an automobile accident in Benton County, Washington. Mr. Chapa was driving. Ms. Chapa, and the couple's infant daughter, Daisy Chapa, were passengers. Their car was stopped for traffic on the "Blue Bridge" between Benton and Franklin County. Clerk's Papers (CP) at 146. The Chapas' vehicle and three others were rear-ended in a chain-reaction collision. The accident police report identifies "Rodney K. Nelson" (Kyle) as the driver that started the chain reaction. CP at 73-75, 84. The driver's address was listed as 3415 West Wernett Road, Pasco, Washington. The report listed "Rod E. Nelson," Kyle's father, the registered owner. CP at 73. Kyle owned the car and resided at the same address. For clarity, the father will be identified as Rod and the son will be identified as Kyle.
The Chapas filed suit for personal injuries on August 15, 2006 against "Rodney Nelson and Jane Doe Nelson." CP at 145. The complaint alleges that as "a result of Rodney Nelson's negligence" the Chapas were injured. CP at 146.
On September 21, the Chapas filed an affidavit of service stating that "Rodney Nelson" was personally served with the summons and complaint on September 10, 2006 at 8331 El Topia Road in Pasco, Washington. CP at 141-42. The affidavit stated that service was attempted at 3414 W. Wernett Road, Pasco, Washington, but it was vacant and "Rodney Nelson [re]located" to the El Topia Road address. CP at 141. On October 11, the Chapas' counsel filed a confirmation of service indicating: "All the named defendants have been served or have waived service. No other named defendants remain to be served." CP at 140.
On October 16, an answer was filed on behalf of "Rodney Nelson" raising several affirmative defenses, and included the statement "there has been insufficiency of service of process on Defendant herein" and "there is a lack of jurisdiction over this Defendant." CP at 139.
The Chapas sent interrogatories to defense counsel. Responses were faxed by attorney Brandon L. Johnson to the Chapas' counsel on November 2, 2006. Among the responses provided by "Rodney Kyle Nelson" was his current address in Bremerton, Washington, and that he had not lived in Pasco since 2005. CP at 83, 84, 132.
The Chapas' counsel confirmed receipt of the interrogatory responses and by voice mail on November 6, asked that the mandatory status conference be waived. The next day, Mr. Johnson faxed and mailed a letter to the Chapas' counsel advising that he would not waive the status conference and that the conference was needed. The day after, November 8, a legal assistant for the Chapas' counsel left Mr. Johnson a message asking why the status conference was needed. Mr. Johnson faxed a letter back, indicating that the conference was needed because there were "issues with your client's case that should be addressed at the status conference" and "[t]hose issues are identified in the defendant's pleadings." CP at 13.
On November 13, Mr. Johnson received a form from the Chapas' counsel entitled "Confirmation of Status Conference," which addressed the current posture of the case. CP at 11. One portion read: "A party remains to be served," to which the Chapas' counsel inserted "N/A." CP at 11, 17. Mr. Johnson crossed out the "N/A" response, initialed it, and sent it back to the Chapas' counsel the same day it was received. CP at 11, 17. The form, as modified, was filed with the trial court on November 16.
On December 11, Mr. Johnson filed a motion to dismiss for failure to commence the lawsuit within the applicable statute of limitations. See RCW 4.16.080 (requiring that a civil action for damages arising from a motor vehicle accident must be commenced by filing or service within three years); RCW 4.16.170 (extending the statute of limitations for 90 days to effect service of process or filing after commencing the action). In an accompanying declaration, Rod indicated that it was he who was served, and that he was not the proper defendant. Kyle filed a declaration, which he signed as "Rodney Nelson," acknowledging that he was "the named Defendant" and "the driver of a vehicle involved in a motor vehicle accident on October 1, 2003." CP at 129-30.
The Chapas' process server, Mario Torres, filed an affidavit in which he recounted the events that took place at the time of service. When Mr. Torres asked for Rodney Nelson at the El Topia Road address, an adult male came out who confirmed his identity as Rodney Nelson. According to Mr. Torres:
I informed Nelson I had legal documents for him. As I extended the documents, he grabbed the document [sic] out of my hand and began to read them. When another person present inquired about the documents, Nelson indicated that the documents were about "the accident."
Nelson began to talk about the papers and the accident, stating the reporting officer had indicated to him that "those people are looking for a lawsuit."
Nelson continued to review the documents, becoming more and more upset. I knew he was upset because he raised his voice and became verbally abusive, making racial slurs and derogatory comments about "those f***ing spics" and "damn Mexicans." I found this to be quite alarming and offensive, as I am of Hispanic dissent.
. . . .
. . . Nelson also narrated details of the accident and details of conversation [sic] with the responding officer.
At no time did Nelson indicate he was not involved in the accident. Contrarily, Nelson spoke as someone with detailed and intimate knowledge of the accident, events leading to the accident, and subsequent initial investigation by the responding officer.
I left the premises . . . confident I had affected service of process on the above named defendant.
CP at 111-12 (paragraph numbers omitted).
On January 12, 2007, the court ordered an evidentiary hearing and stayed the scheduling order, allowing the parties time to engage in limited discovery to resolve the service issue. The Chapas moved for reconsideration of this order on January 19, asking that the order be modified to allow them to proceed on a motion to amend the complaint. They later filed a "memorandum in support of motion to amend complaint and motion for reconsideration." CP at 64. In this document the Chapas argued that the complaint should be amended to allow them to pursue a claim under the family car doctrine against Rod. It is unclear from the record whether the motion to amend was made orally at the earlier hearing. There is no written motion to amend in the record on appeal. There is nothing in the record on appeal to show that the trial court ever ruled on a motion to amend the complaint or on reconsideration.
Because the parties stipulated to the relevant facts, an evidentiary hearing was not needed. The parties agreed that at the time Rod was served at his new El Topia Road residence on September 10, 2006, Kyle did not physically live there. The parties agreed to facts that show that Kyle lived a rather transient lifestyle in the years preceding the service.
After Kyle graduated from Pasco High School at 19 years old in June 2000, he had always lived with his parents. He lived in Cedar City, Utah for four months in the fall of 2000, where he attended South Utah University. Kyle then lived in various residences in Redding, California from January 2001 until October 2003 when he attended Shasta College.
When the accident occurred in October 2003, Kyle had moved back to his parents' home on Wernett Road in Pasco. He lived with his parents from October until January 2004, when he moved to Ellensburg, Washington to attend Central Washington University from January until April 2004.
Kyle returned to his parents' home in April 2004 until he became employed by the Puget Sound Navel Shipyard in October 2004. He stayed in a motel in Bremerton for two weeks in October 2004 until he was sent to Virginia Beach, Virginia for six months' job training. In May 2005, Kyle returned to Bremerton and moved into apartment No. 204 at 1685 Vineyard Lane. About a year later, in July 2006, Kyle moved into a different Bremerton apartment, at 4798 Park Hurst Lane NE, No. 104. This is where Kyle was living when Rod was served two months later, on September 10, 2006.
Shortly after the service on Rod, Kyle married on September 23, 2006. After the motion to dismiss was filed, Kyle renewed his driver's license in January 2007, for the first time since the accident, changing the address from 3415 West Wernett Road, Pasco, to 4798 Park Hurst Lane NE, No. 104, Bremerton.
The parties also note that Kyle has since been hired by Eberline Services, a contractor at Hanford, Washington. He moved into his parents' new home on El Topia Road for the month of April 2007. He moved into an apartment of his own in Richland in May 2007.
Kyle has had several bank accounts, including one that he opened as a teenager and remains active at the Pasco Branch of the Yakima Federal Credit Union. When he became employed with the shipyard in October 2004, he opened an account at the Bremerton branch of Bank of America. He opened an account at the Navy Credit Union in January 2007. Kyle believes he has been registered to vote in Washington, but he does not recall the county in which he is registered. He currently drives a 2000 Nissan Altima, which he purchased at the Nissan dealership in Pasco. The car is registered in his parents' names.
Based on these stipulated facts and after argument on June 22, 2007, the court granted the motion to dismiss. No mention of a motion to amend or reconsider appears on that record. This timely appeal followed.
DISCUSSION A. Abode Service
The question of whether a residence amounts to a place of usual abode for purposes of service of process is a question of law that is reviewed de novo. Blankenship v. Kaldor, 114 Wn. App. 312, 316, 57 P.3d 295 (2002) (citing Sheldon v. Fettig, 77 Wn. App. 775, 779, 893 P.2d 1136 (1995), aff'd, 129 Wn.2d 601, 919 P.2d 1209 (1996)), review denied, 149 Wn.2d 1021 (2003).
RCW 4.28.080(15) provides for abode service of process when a copy of the summons is left at the defendant's house of usual abode with someone of suitable age and discretion who resides there. Sheldon, 129 Wn.2d at 607. Abode service under RCW 4.28.080(15) is to be liberally construed in order to effectuate service and uphold the jurisdiction of the court. Id. at 609. This represented a departure from the former rule that substitute service of process statutes should be strictly construed. Id. at 607. See, e.g., Muncie v. Westcraft Corp., 58 Wn.2d 36, 38, 360 P.2d 744 (1961).
In Sheldon, a plaintiff claiming auto accident injuries filed suit six days before the statute of limitations was to run. Sheldon, 129 Wn.2d at 604. About a month later, the plaintiff attempted service at the defendant's parents' home. The server was told that the defendant was not there. Id. at 606. A copy of the summons and complaint was left with the defendant's brother at the defendant's parents' house in Seattle. Id. At the time of service, the defendant had moved out of her parents' house and taken a job as a flight attendant living in an apartment in Chicago.
After the statute of limitations and 90-day extension period had run, the defense moved for summary dismissal, asserting insufficient service of process. Id. at 606. The trial court denied the motion. Discretionary review was accepted by the Court of Appeals, which affirmed. The Washington Supreme Court also granted review and also affirmed.
The court reviewed the facts regarding service. The defendant was not living in Seattle at the time of service. Eight months before service, she moved to Chicago to begin flight attendant training. Id. at 604. She had lived in her parents' home for only two months before that, as she gave up her own apartment in Renton. After her seven-week training program in Chicago, she rented an apartment there with two other flight attendants and signed a 13-month lease. She had her mail sent to Chicago, joined a health club there, and opened a checking account.
For at least seven weeks after relocating to Chicago, the defendant's parents' address was listed to receive forwarded mail. She registered to vote in Washington two weeks after she left for Chicago, swearing that she was living at her parents' address. The defendant never acquired an Illinois driving license nor did she register to vote in Illinois. Because she was a beginning flight attendant, the defendant did not have a route, and during her blocks of time off she frequently returned to Seattle. Most of her belongings were kept at her parents' home (albeit boxed) and although she did not have a room there designated as her own, she stayed with her parents when she returned home. Id. at 604-05. Two months before service, she started spending the night with her boyfriend next door to her parents. In those two months, she spent only five to six days in Seattle each month. Id. at 605. She left her car in Seattle, which she asked her parents to sell. But her car insurance and registration listed the Seattle address until the car was sold. Id. at 604-05.
In applying a liberal construction, the court noted that while "there is no hard and fast definition of the term 'house of usual abode[,]' [t]he underlying purpose of RCW 4.28.080(15) is to provide a means to serve defendants in a fashion reasonably calculated to accomplish notice." Id. at 610 (citation omitted) (citing Wichert v. Cardwell, 117 Wn.2d 148, 151-52, 812 P.2d 858 (1991)). The court approved the Court of Appeals' reasoning:
"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.
. . . .
. . . '[U]sual place of abode' must be taken to mean such center of one's domestic activity that service left with a family member is reasonably calculated to come to one's attention within the statutory period for defendant to appear."
Id. (alteration in original) (quoting Sheldon, 77 Wn. App. at 781).
Sheldon concluded:
Since Ms. Fettig used the family home for so many of the indicia of one's center of domestic activity, it is fair to conclude it is a center of her domestic activity. . . . Also the family home was the place where Ms. Fettig was most likely to receive notice of the pendency of a suit.
Sheldon, 129 Wn.2d at 610-11.
In this case, the record does not state anything about Kyle having his mail forwarded or the address to which Kyle's bank account statements were sent. We do not know how often Kyle visited his parents' home after he moved to Bremerton.
There are insufficient facts presented to establish that Kyle used the family home as the center of his domestic activity. We are mindful that multiple residences may qualify as a usual place of abode if a nexus to that residence is retained, sufficient to afford a reasonable opportunity to receive notice. We need only decide if Kyle's family home was a center of domestic activity, not the center of domestic activity. In Sheldon the defendant was the "quintessential example of a highly mobile person splitting her time between two places," which led the court to the conclusion that she maintained two places of usual abode. Id. at 612. The facts here show that Kyle was a "boomerang kid," moving back into the family home after leaving to live on his own. The facts do not show that the Chapas had difficulty finding him for service, and in fact their attorney had been informed of Kyle's current address.
The term "boomerang children" refers to adult children who leave home, but then at some point return to live with Mom and Dad. The trend is clearly on the rise. "The 2004 U.S. census figure, shows more than 25 percent of Americans ages 18 to 34 live with their parents. For 18 to 24 year olds: 56 percent of men and 46 percent of women live with parents." Patricia Bliss, Boomerang Kids Can Throw Parents a Curve, The Olympian, Feb. 1, 2006, at 10A, available at www.lexis.com.
Kyle properly relies on Gross v. Evert-Rosenberg, 85 Wn. App. 539, 543, 933 P.2d 439, review denied, 133 Wn.2d 1004 (1997), where the defendant asserted that the plaintiff maintained more than one place of usual abode. In Gross, the plaintiff purported to effect abode service on the defendant's son-in-law. This was defendant's former residence, which she still owned but leased to her daughter and son-in-law. At the time process was served, defendant had moved to another residence in Puyallup. Id. at 541. The son-in-law informed the process server that his in-laws no longer lived at the Federal Way residence. Id. at 542. Refusing to extend Sheldon, the appellate court upheld the dismissal of the action noting, "Although the tenants in the old home were related to [the defendant], they had a completely different center of domestic activity." Id. at 543. As in Gross, the Chapas were put on notice of Kyle's address. Between Kyle's answer to the complaint, his refusal to waive the status conference, and his answer to interrogatories, the Chapas were put on notice as to the correct address and that defendants were contesting the validity of service.
In Gerean v. Martin-Joven, 108 Wn. App. 963, 33 P.3d 427 (2001), review denied, 146 Wn.2d 1013 (2002), the defendant was involved in a car accident when she was living with her parents in Deer Park, Washington. Her husband was serving overseas. Service was attempted by leaving copies of the summons and complaint at the defendant's parents' house. A year earlier, however, the defendant had moved with her husband to Walla Walla. Id. at 967. The court implied that no effort was made to ascertain the defendant's current address. Id. at 972 ("Proper service requires actual service on the defendant or at her abode, not at an unverified address where she lived three years earlier." (Emphasis added)). This court therefore held that the trial court properly dismissed the suit because the parents' home was not a center of the defendant's domestic activity. The same is true here.
Similarly, in Lepeska v. Farley, 67 Wn. App. 548, 833 P.2d 437 (1992) the plaintiff attempted to effectuate service of process on the defendant's mother. The defendant was a school teacher, had his own residence, and spent his summers on the road. Id. at 550. The trial court concluded that service was effective and the Court of Appeals reversed, holding:
Substitute service was attempted on [the defendant] at his parents' home. While [the defendant] may or may not have been living with his parents 3 years earlier when he provided the investigating officer with that address, he avers he was not living there at the time of service. According to his affidavit, he did not live with his parents, but maintained his own household in Burien, near his job. His affidavit also states that during the summer months of 1991, he was on the road with his summer job.
Under Washington case law, service on [the defendant] at his parents' home, when he maintained his own separate home, fails to comply with the substitute service statute.
Id. at 551.
Although Lepeska was a pre- Sheldon case, the Sheldon court distinguished Lepeska, noting: "[W]e could well imagine fact patterns in which serving a defendant at her parents' when she lives elsewhere would not constitute sufficient service of process. See, e.g., Lepeska v. Farley, 67 Wn. App. 548, 833 P.2d 437 (1992); Thoenes v. Tatro, 270 Ore. 775, 529 P.2d 912 (1974)." Sheldon, 129 Wn.2d at 611.
Abode service was not properly made on Kyle.
B. Dismissal of Minor Claim
Next, the Chapas argue that the claim of the minor child, Daisy was improperly dismissed. For persons under the age of 18 who claim personal injuries, the statute of limitations is tolled until the minor reaches the age of majority. RCW 4.16.190. Daisy is still a minor. Kyle properly concedes that Daisy's claim was improperly (but inadvertently) dismissed. Daisy's claim is reinstated.
C. Motion to Amend
Finally, the Chapas contend that the trial court erred by denying their motion to amend the complaint to include a claim under the family car doctrine. Review of a trial court's decision on a motion to amend is reviewed for abuse of discretion. Del Guzzi Constr. Co. v. Global Nw. Ltd., 105 Wn.2d 878, 888, 719 P.2d 120 (1986). We find no error for a number of reasons.
First, the Chapas did not designate in their notice of appeal that they wished to review an order denying a motion to amend. On July 17, 2007, the Chapas filed a notice of appeal of the "order . . . dismissing Plaintiff's action for failure to commence an action within the statutory period." CP at 4. A copy of that order was attached to the notice of appeal. Under RAP 2.4(a) the appellate court will review "the decision or parts of the decision designated in the notice of appeal."
Second, there is no order in the record on appeal that addresses a motion to amend. "The party seeking review has the burden of perfecting the record so that the reviewing court has before it all of the relevant evidence." Bulzomi v. Dep't of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994) (citing State v. Vazquez, 66 Wn. App. 573, 583, 832 P.2d 883 (1992)). "An insufficient record on appeal precludes review of the alleged errors." Id. (citing Allemeier v. Univ. of Wash., 42 Wn. App. 465, 472-73, 712 P.2d 306 (1985), review denied, 105 Wn.2d 1014 (1986)).
Third, it is unclear whether a motion was actually made. As Kyle points out, there is no motion to amend the complaint in the record. There is only a motion for reconsideration that addresses the amendment. But, as noted, this motion may have been made orally. Contrary to Kyle's claim, an oral motion during a hearing is acceptable under the rules. See CR 7(b)(1) ("An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing." (Emphasis added)).
In the absence of an order in the record, there is nothing for this court to review regarding a motion to amend.
CONCLUSION
We conclude that service of process was not properly made on Kyle and therefore affirm the trial court's decision to dismiss the Chapas' complaint against Kyle. We reverse dismissal of the minor, Daisy Chapa's claim. Because the record is insufficient to determine whether the denial of the motion to amend was an abuse of discretion, we affirm that order as well.
Affirmed in part, reversed in part.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, A.C.J., KORSMO, J., concur.