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Jones v. Stebbins12/14/1992
Appellant Walter Jones appeals the dismissal of his personal injury action against Arlen Stebbins. We reverse.
Jones allegedly suffered personal injuries on April 18, 1986. The facts surrounding the accident are not significant to the issues we decide in this case. After taking an earlier voluntary nonsuit, Jones filed the complaint involved in this appeal on March 21, 1989. Stebbins was named as a defendant.
In May 1989, Jones retained a process server to serve the summons and complaint on Stebbins. The process server, Gary Kepka, was informed that Stebbins owned A-1 Automotive & Muffler at 23612 Military Road South in Kent, Washington, which was the address listed on Stebbins' driver's license. Kepka attempted to serve Stebbins at the A-1 Automotive address on several occasions. He was told each time that Stebbins was not there.
On June 15 at about 6:15 p.m., Kepka returned to A-1 and was told that Stebbins was in the office. On arriving at the office, Kepka found a man who he had talked to before and who had previously denied he was Stebbins. No one else was present. Kepka then informed the man that he had been told he was Stebbins and served him with the summons and complaint. According to Kepka, the man took the documents and said, "O.K."
Believing he had successfully served Stebbins, Kepka did not immediately notify Jones' counsel of the service. By June 19, 1989, counsel still had not been notified of service, and thus obtained an ex parte order permitting service on
Stebbins by certified mail. He mailed the summons and complaint to Stebbins at the A-1 address on the same day.
Stebbins filed his notice of appearance on July 11, 1989, and on November 27, 1989, answered the complaint raising as an affirmative defense the expiration of the 3-year statute of limitations. On March 11, 1991, Jones requested and was granted a continuance of the trial date until June 24, 1991. On April 15, 1991, Stebbins filed a motion to dismiss the action based on the running of the statute of limitations, which motion was granted.
Attempted Personal Service
The first issue we decide is whether Stebbins was personally served prior to the running of the statute of limitations. Jones argues that because Stebbins represented his business address as being his home address, the substituted service on the individual at the business address was valid personal service. Jones also argues that because Stebbins concealed himself within the meaning of RCW 4.16.180, the time spent searching for Stebbins should be excluded from the period during which service could be accomplished.
Jones filed his complaint on March 21, 1989, and pursuant to RCW 4.16.170, he had 90 days within which to commence his action by serving Stebbins.
In personam jurisdiction over resident individuals is obtained either by serving the defendant personally or by substitute service, i.e., "leaving a copy of the summons at the house of his usual abode with some person of suitable
age and discretion then resident therein." RCW 4.28.080(15) (formerly (14)).
Defendant presented considerable evidence before the trial court that he could not have been the person served at his business on June 15, 1989. Jones has offered nothing to refute this evidence. While it appears that Jones' action was dismissed on defendant's CR 12(b) motion, the record before the trial court on this issue compelled the conclusion that Stebbins was not the person served by Jones on June 15.
Jones argues that Stebbins' business should be t
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