Paschall v. Crisp , 138 Or. App. 618 ( 1996 )

LANDAU, J.

Plaintiff appeals a summary judgment entered in favor of defendant on the ground that plaintiff failed to complete service within the statute of limitations. We affirm.

The facts are undisputed. On November 3, 1990, defendant¹ was driving a car registered in his brother’s name when he rear-ended plaintiff. Defendant’s brother was a passenger. When an investigating police officer arrived at the scene of the accident, defendant reported his current address as 8150 S.W. Barnes Road, Portland. The officer recorded that address in the police report.

On November 2, 1992, plaintiff filed a complaint against both defendant and his brother, seeking damages for personal injuries. On November 11,1992, plaintiff personally served defendant’s brother with a summons and complaint at his residence. Plaintiff attempted to serve defendant at the same address, but defendant’s brother told the process server that defendant did not live there and refused to say where he did live. That same day, plaintiff attempted personal service on defendant at 5300 Parkview, Lake Oswego, an address that plaintiff had determined was listed as defendant’s in the driver records at the Oregon Motor Vehicle Department (MVD) since 1990. That attempt was unsuccessful, because, as plaintiff learned at that time, defendant no longer lived at that address. On December 4,1992, plaintiff left a copy of the summons and complaint with the MVD. On December 10, 1992, plaintiff mailed a copy of the summons and complaint to the 5300 Parkview address, where service already had proven unsuccessful. That mailing was returned, stamped: “MOVED[J LEFT NO ADDRESS[,] UNABLE TO FORWARD.”

Plaintiff then received a letter from defendant’s lawyer. In that letter, counsel explained that he would be representing both defendant and defendant’s brother. He also explained that, although defendant’s brother had been served, he was unable to determine whether defendant had been served as well.

On January 18, 1993, plaintiff mailed a copy of the summons and complaint to 8150 S.W. Barnes Road, the address listed in the police report. That mailing was returned with a notation that defendant had moved.

Defendant moved for summary judgment on the ground that plaintiff had failed to complete service in a timely fashion. Defendant argued that, because plaintiff had filed his complaint only one day before the running of the statute of limitations, ORS 12.110, plaintiff had 60 days to complete service under ORS 12.020(2). Defendant reasoned that he was entitled to judgment as a matter of law, because plaintiff failed either to personally serve or to effect substituted service within that time. Plaintiff argued that he had timely completed “MVD service” under ORCP 7 D(4)(a)(i) and that, in any event, his attempts at service were reasonably calculated to apprise defendant of the pendency of the action, in accordance with ORCP 7 D(l). Defendant responded that service under ORCP 7 D(4)(a)(i) had not timely been completed, because one of the follow-up mailings required under that rule — to the address reported to the police at the time of the accident — did not occur until well after the 60-day service period had run. Defendant also contested the reasonableness of the notice afforded by plaintiffs efforts. Plaintiffs only response was that, because deposition testimony revealed that defendant did not live at the address he reported to the police, it “would have been an exercise in futility” to mail him a copy of the summons and complaint at that location. The trial court granted defendant’s motion.

On appeal, plaintiff argues that the trial court erred in granting defendant’s summary judgment motion. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Murphy v. Price, 131 Or App 693, 695, 886 P2d 1047 (1994), rev den 321 Or 137 (1995).² In this case, no one has asserted, either at trial or on appeal, that there exist genuine issues of material fact or that the record is in any way insufficient. The only issue is whether, on the record before us, plaintiffs attempted service was adequate and timely. That is a question of law. Luyet v. Ehrnfelt, 118 Or App 635, 638, 848 P2d 654 (1993).

ORS 12.020(2) provides:

“If the first publication of summons or other service of summons in an action occurs before the expiration of 60 days after the date on which the complaint in the action was filed, the action against each person of whom the court by such service has acquired jurisdiction shall be deemed to have been commenced upon the date on which the complaint in the action was filed.”

In Baker v. Foy, 310 Or 221, 224, 797 P2d 349 (1990), the Supreme Court held that, for the purposes of ORS 12.020(2), jurisdiction is acquired when the requirements of ORCP 7 are satisfied. The court described a two-part test for determining whether those requirements have been satisfied. First, if service was accomplished in accordance with one of the specific methods allowed in ORCP 7, then it is presumptively adequate, and, if nothing in the record overcomes that presumption, the inquiry ends. Second, if service was not accomplished in accordance with one of the specific methods enumerated in ORCP 7, we must determine whether the manner employed nevertheless satisfies the more general requirements of ORCP 7 D(l), which provides, in part:

“Summons shall be served * * * in any manner reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend.”

In this case, the complaint was filed on November 2, 1992. Accordingly, the question is whether plaintiff served defendant on or before January 1, 1993, 60 days after the filing of the complaint, in a manner that satisfied the requirements of either one of the two tests set out in Baker.

Plaintiff argues that his service of defendant satisfied both prongs of the Baker test. First, he argues that, by serving MVD and by sending a follow-up mailing to defendant at the 5300 Parkview address — the address on file at the time at MVD — he satisfied the specific requirements of ORCP 7 D(4)(a)(i). Defendant argues that plaintiff failed to satisfy the requirements of that rule, which requires follow-up mailings to several addresses, including the one “given by the defendant at the time of the accident.” ORCP 7 D(4)(a)(i). He contends that the address defendant gave to the police at the time of the accident was 8150 S.W. Barnes Road, and plaintiff did not mail a copy of the summons and complaint to that address until more than 60 days after the filing of the complaint. Plaintiff argues that the rule was, in fact, satisfied, because the 5300 Parkview address was “given” to MVD at the time of the accident.

In construing the rules of civil procedure, we apply ordinary principles of statutory construction. Weaver and Weaver, 119 Or App 478, 482, 851 P2d 629 (1993). Accordingly, in evaluating plaintiff s argument that the reference to “address given at the time of the accident” in ORCP 7 D(4)(a)(i) means the address on file at MVD at the time of the accident, we examine the text of the rule, read in its context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).

ORCP 7 D(4)(a)(i) provides, in relevant part:

“In any action arising out of any accident, collision, or liability in which a motor vehicle may be involved while being operated upon the roads, highways, and streets of this state, any defendant who operated such motor vehicle, or caused such motor vehicle to be operated on the defendant’s behalf who cannot be served with summons by any method specified in subsection 7 D(3) of this rule,[³] may be served with summons by leaving one copy of the summons and complaint with a fee of $12.50 in the hands of the Administrator of the Motor Vehicles Division * * *. The plaintiff shall cause to be mailed by registered or certified mail, return receipt requested, a true copy of the summons and complaint to the defendant at the address given by the defendant at the time of the accident or collision that is the subject of the action, and at the most recent address as shown by the'Motor Vehicles Division’s driver records, and at any other address of the defendant known to the plaintiff, which might result in actual notice to the defendant. For purposes of computing any period of time prescribed or allowed by these rules, service under this paragraph shall be complete upon the date of the first mailing to the defendant.”

(Emphasis supplied.) From the text of the rule itself, it is clear that plaintiffs proposed construction is implausible. The rule requires follow-up mailing to both the “address given by the defendant at the time of the accident” and the “most recent address as shown by the Motor Vehicles Division’s driver records.” To read the rule as plaintiff suggests — that is, that the “address given by the defendant at the time of the accident” is the address on file at MVD at the time of the accident — renders the reference to the “address given by the defendant at the time of the accident” completely redundant; in all cases, a mailing to the address listed with MVD would suffice. We find no evidence in the text or context of the statute that such a complete redundancy was intended. deParrie v. City of Portland, 138 Or App 105, 111, 906 P2d 844 (1995).⁴ Plaintiffs service, therefore, failed to satisfy the requirements of ORCP 7 D(4)(a)(i).

Plaintiff next argues that, even if his service did not meet the requirements of ORCP 7 D(4)(a)(i), it did meet the reasonable notice standard of ORCP 7 D(l). He argues that, by leaving a copy of the complaint and summons with defendant’s brother, and by mailing the documents to the 5300 Parkview address, his service was reasonably calculated to apprise defendant of the pendency of the action. Defendant argues that, because pkdntiff knew that defendant did not live with his brother and knew that he did not live at 5300 Parkview, Lake Oswego, there is no basis on which to conclude that plaintiffs efforts were reasonably calculated to provide defendant notice of the pendency of the action.

In evaluating the reasonableness of service under ORCP 7 D(l), we examine “the totality of the circumstances as they were known to plaintiff at the time of service.” Murphy, 131 Or at 696-97.

We first consider plaintiffs service on defendant’s brother. Plaintiff did hand-deliver a copy of the summons and complaint to defendant’s brother. Nevertheless, plaintiff had no information at that time that reasonably could have led him to believe that defendant would obtain those documents. Defendant’s brother did not agree to forward the documents to his brother. See Atterbury v. Wells, 125 Or App 591, 595, 866 P2d 484, rev den 319 Or 80 (1994). There is no evidence that defendant maintained regular, frequent and predictable contacts with his brother. See Duber v. Zeitler, 118 Or App 597, 601, 848 P2d 642, rev den 316 Or 527 (1993). To the contrary, defendant’s brother told the process server that defendant no longer lived at that address and refused to say where he did live.

We next consider the follow-up mailing to the 5300 Parkview address. Plaintiff already had attempted personal service at that address and had discovered that defendant no longer lived there. Plaintiff does not explain, and we do not understand, how .mailing a copy of the summons and complaint to an address at which he knows defendant does not reside is reasonably calculated to provide defendant notice of the pendency of the action.

Plaintiff complains that he “did everything possible to notify defendant” of the action. That, however, is not the standard for determining compliance with ORCP 7 D(l). Moreover, it is not entirely clear that plaintiff, in fact, did everything possible. Plaintiff failed even to attempt service at the address defendant gave to the police until well after the 60-day period had run. Plaintiff argues that service on that address would have been a futile gesture, because, as plaintiff later learned upon the return of the January 18, 1993 mailing, defendant did not live there either. It is undisputed, though, that plaintiff did not know that before the 60-day period had run, and that is the relevant inquiry under ORCP 7 D(l). Under the circumstances, it is clear that plaintiffs service was not reasonably calculated to apprise defendant of the pendency of the action. Accordingly, the trial court did not err in entering summary judgment for defendant.

Affirmed.

1 We use the term “defendant” to refer to Earn Adam Crisp, respondent in this appeal. Although his brother also was a defendant in the proceedings below, defendant’s brother is not a party on appeal.

2 The 1995 amendments to ORCP 47 have no bearing on our determination.

3 The parties do not argue, and we do not address, whether there is evidence in the record that defendant could not be served “by any method specified in subsection 7 D(3).”

4 In his reply brief, and for the first time in this case, plaintiff argues that, in any event, service was completed under ORCP 7 D(4)(a)(i), because the rule provides that, for the purposes of computing time periods, service is complete upon the first mailing, and, in this case, the first mailing — to the 5300 Parkview, Lake Oswego, address — occurred before the 60-day period had run. That argument, however, was not asserted at trial and does not afford a basis for reversal on appeal.