[WSBARP] Litigation Ethics ( a rare commodity?)

[NC]

In addition to rising above the other attorney's practice, you can argue
that "actual notice" was achieved which makes substitute service more
effective.
Sheldon v. Fettig 129 Wn.2d 601 (Wash. 1996)
919 P.2d 1209

In interpreting substitute service of process statutes, strict construction
was once the guiding principle of statutory construction. See *Muncie v.
Westcraft Corp.,* 58 Wash.2d 36, 38, 360 P.2d 744 (1961). However, more
recently, we have applied liberal construction to substitute service of
process statutes in order to effectuate the purpose of the statute while
adhering to its spirit and intent.

For example, in Martin v. Meier, 111 Wash.2d 471, 760 P.2d 925 (1988) the
issue was whether a defendant was properly served under the motorist
statute. Such service is statutorily permitted only when the defendant
"departs from this state." RCW 46.64.040. The defendant in Martin had not
left the state although plaintiff was unable to locate him. This court
liberally construed the term and upheld the sufficiency of service of
process. In doing so, the term "departs" was interpreted by looking at the
underlying purpose of the motorist statute which is to provide a method for
serving motorists who cannot be found in the State.

In *Wichert v. Cardwell,* 117 Wash.2d 148, 812 P.2d 858 (1991), we used
liberal construction in interpreting the term "then resident therein" in
the substitute service of process statute noting that strict construction "
'has been the object of a great deal of criticism in modern times.' " *Id*.
at 152, 155, 812 P.2d 858 (quoting 3 Norman J. Singer, Statutory

*Page 608*

Construction § 61.04 (4th ed. 1986)). In Wichert, service was left at
defendant's home with his adult stepdaughter who happened to be staying the
night while the parents were away. The adult daughter, however, lived
elsewhere, was self-supporting, and had no *[919 P.2d 1212]* personal
possessions at the parental house. Wichert, 117 Wash.2d at 150, 812 P.2d
858. We focused on the "spirit and intent of the statute" rather than "the
literal letter of the law" and stated that the term should be defined so as
to uphold the underlying purpose of the statute. *Id*. at 151, 812 P.2d
858. We held the dual purpose of the statute is to (1) provide means to
serve defendants in a fashion reasonably calculated to accomplish notice
and (2) allow injured parties a reasonable means to serve defendants.
Wichert, 117 Wash.2d at 151-52, 812 P.2d 858. The court found an adult
family member who was in sole control of the home while its inhabitants
were away would likely present the papers to defendant. *Id*. at 152, 812
P.2d 858. Because the underlying rationale was thus met, the court held
that the daughter fit within the statutory definition of "then resident
therein." *Id*. at 153, 812 P.2d 858.

In *Martin v. Triol,* 121 Wash.2d 135, 847 P.2d 471 (1993) we also applied
liberal construction. The issue there was whether defendant could be served
under the motorist statute during the 90-day tolling period following the
three-year period allowed in the statute. RCW 46.64.040. The motorist
statute only authorizes service for three years following an accident.
Plaintiff attempted service within 90 days after expiration of the three
years. In a strict reading, plaintiff failed to serve within three years.
However, the court, mindful that the civil rules are meant to minimize
miscarriages of justice on procedural grounds, stated " 'we do not apply a
strict construction ... [r]ather, we so construe the statute as to give
meaning to its spirit and purpose, guided by the principles of due
process....' " Triol, 121 Wash.2d at 145, 847 P.2d 471 (quoting Wichert,
117 Wash.2d at 156, 812 P.2d 858). The court defined the three-year period
in which service could be made as three years plus the 90-day tolling
period, and found service sufficient.

We also note many sister jurisdictions follow a rule of

*Page 609*

liberal construction in interpreting substitute service of process statutes
when actual notice is received. See, e.g., *Larson v. Hendrickson,* 394
N.W.2d 524, 526 (Minn.Ct.App.1986); *Lavey v. Lavey,* 551 A.2d 692
(R.I.1988); *Karlsson v. Rabinowitz,* 318 F.2d 666 (4th Cir.1963); *Plonski
v. Halloran,* 36 Conn.Supp. 335, 337, 420 A.2d 117 (1980) (statutes
governing substituted service should be liberally construed in those cases
in which the defendant received actual notice). See generally Allen E.
Korpela, Annotation, Construction of Phrase "Usual Place of Abode," or
Similar Terms Referring to Abode, Residence, or Domicil, as Used in
Statutes Relating to Service of Process, 32 A.L.R.3d, 112, 124-25 (1970).

On Wed, Jun 14, 2017 at 3:40 PM, Paul Neumiller <pneumiller at hotmail.com>
wrote:

> Hey Litigators!  I represent a HOA that needs to execute on a judgement
> lien on a residence in the subdivision (for past dues).  House has been
> vacant for about 10 years and can only be torn down.  In trying to hunt
> down the owner in order to serve owner with execution pleadings (trying
> multiple numbers and addresses and leaving messages), I received a call and
> multiple emails from an attorney who says she represents owner.  No deal is
> reached AND the attorney declines/refuses to tell me where to serve the
> owner and will not accept service of process on behalf of the owner.  So I
> need to go into court and get permission from the court to serve by
> publication because the owner is purposely trying to avoid service, which
> will extend the response time from 20 days to 60 days.
>
>
>
> So, is there any requirement (moral, legal, or ethical) that I also send
> copies of the court pleadings to the owner’s attorney????  Part of me says
> “screw ‘em.  If the attorney is going to play games (I know, my
> interpretation) AND I don’t really know if she truly represents the owner,
> then why should the attorney get notice and the pleadings?  Let her find
> out the normal way (property posting) and then she can file a Notice of
> Appearance if she wants to.”  Another part of me says that I should rise
> above that thought and give copies to the attorney, if for any reason,
> because if I need to take a default and go to the sheriff’s sale, it would
> more likely survive a challenge.  What say you??
>
>
>
>
> _______________________________________________
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> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>



-- 
Nicholas L. Clapham
(206)939-0262

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