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Benavidez v. Benavidez6/2/1999
Appeal from Circuit Court, Marion County.
Pamela L. Abernethy, Judge.
Argued and submitted December 11, 1998.
Before De Muniz, Presiding Judge, and Haselton and Linder, Judges.
Reversed and remanded.
Plaintiff appeals a judgment dismissing his personal injury claim, ORCP 21 A(2), because of failure to adequately serve defendant, Crystal Newkirk, within 60 days of filing the complaint. ORCP 7; ORS 12.020. Plaintiff asserts that the trial court erred in concluding that plaintiff's method of service was inadequate and contends that that service satisfied the requirements of ORCP 7 D(1) because it was reasonably calculated to apprise defendant of the pendency of the action. We reverse and remand.
For the purposes of this appeal, the material facts are undisputed: On September 4, 1995, plaintiff was injured in an automobile accident involving defendant. At the time of the accident, defendant was 16 years old and lived with her parents at their family home in Hubbard, Oregon. Defendant provided that address in the police accident report, which also indicated that her parents, Orin and Terry Newkirk, were the registered owners of the car she was driving.
On March 25, 1997, plaintiff's attorney obtained defendant's records from the Department of Transportation, Motor Vehicles Division (MVD), which listed defendant's address as the family home in Hubbard. On May 17, 1997, defendant married and moved with her husband into an apartment in Hillsboro. In early or mid-June, defendant notified MVD of her change of address.
On September 2, 1997, two days before the two-year statute of limitations expired, plaintiff filed a complaint against defendant and defendant's parents, alleging negligence. Plaintiff then attempted to serve defendant within the 60-day time period permitted by ORS 12.020(2). Specifically, on September 9, plaintiff's process server, without again checking the MVD records, went to the family home in Hubbard for the purpose of serving defendant and her parents. There, the process server met defendant's father and advised him that his purpose was to serve "Crystal Rose Newkirk, Orin L. Newkirk, and Terry Newkirk." He then asked if all three lived there. Although defendant was, in fact, living in Hillsboro with her husband, defendant's father told the process server that she was living with her parents. The process server then personally served defendant's father, served Terry Newkirk by substituted service upon defendant's father, and attempted service on defendant by substituted service upon defendant's father.
Defendant's father did not give defendant the summons and complaint. Instead, he deliberately concealed the lawsuit from her because she was in the late stages of a difficult pregnancy and he was concerned about her health. That same day, the process server mailed the required follow-up correspondence for substitute service to defendant at the Hubbard address. ORCP 7 D(2)(b).
There is no evidence that defendant had actual notice of the pendency of the action within 60 days from the filing of the original complaint.
On November 20, 1997, more than 60 days after plaintiff's filing of the complaint, defendant moved to dismiss the action against her for lack of personal jurisdiction based on inadequate service of process. The trial court granted that motion and entered an ORCP 67 B judgment for defendant.
On appeal, plaintiff asserts that the dismissal was erroneous because, given what the process server knew at the time of service, service was "reasonably calculated * * * to apprise the defendant of the existence and pendency of the action." OR
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