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Murphy v. Price12/14/1994
COURT OF APPEALS OF OREGON
9211-07951, CA A81633
1994.OR.40625 ; 131 Or.App. 693; 886 P.2d 1047
Filed: December 14, 1994.
MARLA MURPHY, APPELLANT,
v.
STEVEN RAY PRICE, RESPONDENT
Thomas A. Bittner, Portland, argued the cause for appellant. With him on the briefs was Schulte, Anderson, DeFrancq, Downes & Carter, P.C
William J. Martin, Portland, argued the cause for respondent. With him on the brief was Cavanagh & Zipse
Before Warren, P.J., and Edmonds and Landau, JJ
LANDAU, Judge.
Plaintiff appeals from a summary judgment granted in favor of defendant on the ground that plaintiff failed to adequately serve defendant with a summons and complaint. ORCP 7. We affirm.
The facts are undisputed. On December 8, 1990, defendant's car collided with a vehicle in which plaintiff was a passenger. Defendant exchanged information, including his mailing address, with the driver of the other vehicle. Defendant and his landlord share the same mailbox and have authorized each other to pick up the other's mail. Defendant did not tell plaintiff, however, about the shared mailbox and the understanding with his landlord.
On November 19, 1992, plaintiff filed this personal injury action. On that day, plaintiff mailed to the address given by defendant, a true copy of the summons and complaint by certified mail, return receipt requested, unrestricted delivery. Before mailing the summons and complaint, plaintiff had confirmed defendant's current address with the Motor Vehicles Department (MVD).
On November 20, 1992, defendant's landlord signed the receipt for the summons and complaint and gave it to defendant the following day. Plaintiff never tried to serve defendant by personal service, substituted service or office service. On February 5, 1993, defendant filed his answer and affirmative defense, alleging improper service and the expiration of the statute of limitations. Both parties moved for summary judgment on the affirmative defense. The trial court denied plaintiff's motion, granted defendant's motion and entered judgment for defendant. Plaintiff appeals, assigning error to the trial court's order granting defendant's summary judgment motion and denying plaintiff's motion.
Summary judgment is appropriate when there is no issue of material fact and the moving party is entitled to judgment as a matter of law. Gaston v. Parsons, 318 Or. 247, 251, 864 P.2d 1319 (1994). Because there is no dispute as to any material fact, we determine the adequacy of service on defendant as a matter of law.
Plaintiff contends that service by mail in this case was reasonably calculated to apprise defendant of the pendency of the action and to afford defendant a reasonable opportunity to appear and defend. Plaintiff also argues that, because defendant received actual notice and was not prejudiced by the manner of service, the alleged error must be disregarded pursuant to ORCP 7G and ORCP 12B. Defendant asserts that service by mail, under the circumstances of this case, failed to provide adequate notice. We agree with defendant.
In Baker v. Foy, 310 Or. 221, 228-29, 797 P.2d 349 (1990), the Supreme Court articulated a two-part test for determining the adequacy of service under ORCP 7. First, we must decide whether the method by which service of summons was made was one of the methods described in ORCP 7D(2), was specifically permitted for use upon the p
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