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Jones v. Stebbins12/14/1992
reated as his residence for purposes of service. However, even if Stebbins' business is treated as his residence, Jones has presented no evidence that the person served at Stebbins' business was a resident therein as required by RCW 4.28.080(15). Indeed, there is no evidence in the record regarding the identity of the person served. Service on the unknown individual was not sufficient to give the trial court personal jurisdiction over Stebbins.
Substituted Service
On June 19, 1989, the 90th day following filing of the complaint, the trial court entered an ex parte order finding that Stebbins was concealing himself within the state under RCW 4.28.100, and authorized service by mail to Stebbins' business address.
CR 4(d)(4) permits, pursuant to court order, service by mail as an alternative to service by publication in circumstances justifying service by publication.
Jones claims valid substituted service upon Stebbins in compliance with CR 4(d)(4). Stebbins argues, however, that in Citizens Interested in Transfusion of Yesteryear v. Board of Regents, 86 Wash. 2d 323, 544 P.2d 740 (1976), the Supreme Court followed CR 5(b)(2)(A) and held that the presumption
is that service by mail is not deemed complete until the third day following the date of mailing.
CR 5 applies to service and filing of pleadings and other papers other than the original complaint. CR 5(a).
While CR 5(b)(2)(A) does expressly provide that
he service shall be deemed complete upon the third day following the day upon which they are placed in the mail, unless the third day falls on a Saturday, Sunday or legal holiday, in which event service shall be deemed complete on the first day other than a Saturday, Sunday or legal holiday, following the third day[,]
the rule does not apply to this case because the mailing in this case was of the original complaint.
The Citizens court was technically correct in applying CR 5(b)(2)(A) to the facts of that case because there the attempted service by mail was of the summons and amended complaint.
Furthermore, the language of CR 4(d)(4) suggests that the date of mailing was intended as the date of completed service. The rule provides in part:
The summons shall contain the date it was deposited in the mail and shall require the defendant to appear and answer the complaint within 90 days from the date of mailing. Service under this subsection has the same jurisdictional effect as service by publication.
The Supreme Court could not have considered the effect of this language on the 3-day presumption outlined in CR 5(b)(2)(A) because CR 4(d)(4) did not become effective until July 1, 1977, after Citizens was decided. See 88 Wash. 2d 1111 (1977).
The portion of CR 5 which adds 3 days to all time requirements when service is by mail does not apply to the service of original process -- the summons and complaint -- as permitted by the amendment adding CR 4(d)(4).
The trial court erred in granting Stebbins' motion for dismissal.
Jones makes the additional argument that Stebbins' concealment should be held as tolling the running of the statute of limitations. Due to our resolution of the statute of limitations
issue on other grounds, we find
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