[WSBARP] Litigation Ethics ( a rare commodity?)

Wed Jun 14 15:04:55 PDT 2017

Wow, you guys are really no fun.  Looks like no one is going to allow me to indulge in my own childish behavior.  Ok, I’ll give notice and I like Andrews suggest in order to establish the owner is avoiding service.  Thanks to everyone for keeping me on the straight and narrow (and the case law).

[cid:image002.jpg at 01D2E51E.DB17DF00]

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of NC
Sent: Wednesday, June 14, 2017 1:53 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation Ethics ( a rare commodity?)

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<mailto: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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