Brown-Edwards v. Powell , 144 Wash. App. 109 ( 2008 )

Brown, J.

¶13 (dissenting) Personal service of process is not sufficient under RCW 4.28.080(15) when mistakenly left with a party’s neighbor and the neighbor then, by chance, delivers the process to the intended party. Because that occurred here, I disagree with the superior court’s decision to deny CR 12(b)(5) dismissal of Ellen Brown-Edwards’ personal injury action against James and Shirley Powell. We should not retreat from the rule we established in Gerean v. Martin-Joven, 108 Wn. App. 963, 972, 33 P.3d 427 (2001) (“actual notice does not constitute sufficient service” (citing Thayer v. Edmonds, 8 Wn. App. 36, 40, 503 P.2d 1110 (1972))).

¶14 The service burden should remain on plaintiffs to give formal notice of suit for the purpose of alerting defendants of the necessity of a formal response. The accidental acquisition of a summons and complaint and chance delivery to an intended party does not satisfy that burden. Imagine the havoc resulting from “process service” by some stranger who accidentally comes across a summons and complaint blowing down the street from some trash bin.

¶15 Moreover, we do not have an affidavit of service but a defensive declaration given by the neighbor mistakenly served with process that was submitted in aid of the Powells’ motion for summary judgment dismissal. The neighbor’s affidavit was secured and submitted long after the Powells reserved their objections to service when they answered the complaint. Ms. Brown-Edwards misconstrues the statements as an affidavit of service.

¶16 I would hold the trial court erred in concluding chance delivery of the papers constituted effective personal service on the Powells. Defective service cannot be cured by an individual who “fortuitously” delivers a summons, even if that individual meets the CR 4(c) criteria. Gerean, 108 Wn. App. at 972. Further, I would hold that the trial court erred in denying the Powells’ CR 12(b)(5) motion to dismiss. Ms. Brown-Edwards suggests a result far exceeding any case that has recognized substantial compliance with RCW 4.28.080(15). Accordingly, I respectfully dissent.