Abbotts v. Bacon
Abbotts v. Bacon
Opinion of the Court
Plaintiff appeals from a judgment granting defendant’s motion to dismiss. He argues that the trial court erred in its determination that the service of summons on defendant was inadequate under ORCP 7D. We reverse and remand.
Plaintiff filed this personal injury action on November 4, 1992, naming a corporation, Tillicum Club, Inc., as a defendant.
Defendant filed a motion to dismiss on the ground that plaintiff did not effect adequate service on the corporation. The trial court granted defendant’s motion and dismissed the complaint. Plaintiff argues that the trial court incorrectly determined that plaintiff failed to adequately serve defendant. Whether service was sufficient under ORCP 7D is a question of law. Luyet v. Ehrnfelt, 118 Or App 635, 638, 848 P2d 654 (1993).
ORCP 7D(1) provides:
“Summons shall be served * * * in any manner reasonably calculated, under all the circumstances, to apprise the*318 defendant of the existence and pendency of the action and to afford a reasonable opportunity to appear and defend.”
That rule does not require a particular method of service to satisfy the reasonable notice standard; however, ORCP 7D(2) sets forth several methods of service that may be used, and ORCP 7D(3) describes which methods may be used for particular defendants. Baker v. Foy, 310 Or 221, 225-26, 797 P2d 349 (1990). We apply a two-step test to determine whether service was adequate:
“First, if the plaintiff used one of the methods described in ORCP 7, then service is presumed to have been reasonably calculated to apprise the defendant of the action and to afford [the defendant] a reasonable opportunity to appear and defend. Second, if the defendant rebuts that presumption, or if the plaintiff did not use one of the methods described in the rule, then the court must determine whether service, nevertheless, was adequate, because it satisfied the ‘reasonable notice’ standard set forth in ORCP 7D(1).” Mitchell v. Harris, 123 Or App 424, 427, 859 P2d 1196 (1993).
Here, plaintiff claims to have completed service under ORCP 7D(3)(b)(i), which sets forth the primary service method for corporations and limited partnerships:
“[Service may be made] by personal service or office service upon a registered agent, officer, director, general partner, or managing agent of the corporation or limited partnership, or by personal service upon any clerk on duty in the office of a registered agent.” (Emphasis supplied.)
Plaintiff argues that he satisfied the requirements of ORCP 7D(3)(b)(i) by personally serving a clerk on duty, the bartender, in the office of defendant’s registered agent.
The next issue is whether the employee who plaintiff personally served was a “clerk” on duty in the registered agent’s office. ORCP 7D(3)(b)(i). The term “clerk” is not defined in the rules. Accordingly, our task is to discern the legislature’s intended meaning for the term as it is used in ORCP 7D(3)(b)(i). PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). The first source we use in statutory construction is the text and context of the rule. 317 Or at 611. Read alone, the language of ORCP 7D(3)(b)(i) itself does not reveal anything about the scope or meaning of the term “clerk.” Consideration of the surrounding rules of procedure is similarly uninformative.
If, after a review of the text and context, the language of the rule still remains unclear, we consult the legislative history of the provision for explanation of the legislature’s intent. The portion of ORCP 7D(3)(b)(i) at issue in this case originally appeared as an amendment to former ORS 15.080 (;repealed by Or Laws 1979, ch 284, § 199) before it was incorporated into the ORCP in 1979.
In this case, the registered agent’s office is in a bar and the “clerk” in that office is, under these circumstances, the bartender.
Plaintiff is entitled to the presumption of adequate service and there is nothing in the record to overcome that presumption. Baker v. Foy, supra, 310 Or at 228-29. Therefore, we need not consider whether service complied with the reasonable notice standard of ORCP 7D(1).
Reversed and remanded.
Plaintiff also named two individual defendants, David Patrick Bacon and Douglas Steven Bacon. On May 17,1993, the trial court entered a default judgment against the individual defendants. Therefore, our reference to defendant in this opinion is to the corporation only.
Plaintiff argues, in the alternative, that he satisfied ORCP 7D(3)(b)(i) through office service on defendant’s registered agent. In support of his argument, he cites Boyd and Boyd, 131 Or App 194, 884 P2d 556 (1994), rev den 320 Or 507 (1995), which examined the requirements and legislative history of office' service under ORCP 7D(2)(c). Because of our disposition of plaintiffs first argument, we need not reach plaintiffs alternative argument.
Former ORS 15.080(l)(a) provided, in part:
“The summons shall be served by delivering a copy thereof, with a copy of the complaint * * * as follows:
*320 “(1) If the action is against a private corporation:
“(a) To the registered agent of the corporation or to any clerk on duty in the office of the registered agent[.]”
A review of statements regarding ORCP 7D that were submitted by the Council on Court Procedures during the 1979 legislative session did not uncover any explanation of the intended meaning of “clerk.” Summary of Rules: Council on Court Procedures-Rules 1-10, Exhibit A, House Judiciary Committee (Feb. 15, 1979). See also Merrill, Jurisdiction and Summons in Oregon 160-63, § 2.14 (1986).
At this stage of analysis, without any affirmative legislative history to support its position, the dissent relies heavily on the “plain meaning” of “clerk” as derived from definitions in Webster’s Third New International Dictionary (unabridged 1971). Based on those definitions, the dissent comes to the conclusion that the key characteristic of a “clerk” is “responsibility for handling documents.” 133 Or App at 321 n 1.
Because the meaning of “clerk” is susceptible to subtle differences in interpretation, and there is some legislative history that provides a glimpse of the legislature’s intended meaning, reference to a dictionary in this situation is inappropriate. Instead of turning to a source that the legislature might not have considered, a better approach is to look at the examples of “clerks” that the legislature provided and identify general characteristics that are reasonable in the light of the language and context of the rule itself. We believe that employee status and contact with the registered agent are the most obvious characteristics. Interaction with the public is another characteristic, because a “clerk” presumably stands as the registered agent’s representative to third parties who are attempting to effect service on a defendant corporation. The option of serving a “clerk” of a registered agent under ORCP 7D(3)(b)(i) would be meaningless if that individual were invisible or unavailable to the public.
The dissent points to the registered agent’s instruction to her employees not to accept anything on behalf of herself or the tavern that required a signature as support for the trial court’s presumptive finding that the bartender did not have a duty to insure that the complaint and summons reached her employer. 133 Or App at
Dissenting Opinion
dissenting.
A bartender is not a clerk. Accordingly, I must dissent.
The majority acknowledges that the defining characteristic of a clerk for purposes of ORCP 7D(3)(b)(i) is the responsibility for handling and transmitting documents to the registered agent. 133 Or App at 321. That requirement accords both with the commonly understood meaning of “clerk”
The majority does not, I believe, purport to hold that all bartenders are clerks. Nor could it plausibly.
That conclusion, however, disregards Meredith’s affidavit, which states that she instructed the bartender “not to accept anything on my behalf or on behalf of the tavern that required a signature.” That averment afforded a sufficient evidentiary basis for the trial court’s presumptive finding that the bartender had no duty to insure that the registered agent received the summons. See Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).
Plaintiff argues, in the alternative, that there was effective office service on the registered agent. ORCP 7D(2)(c).
I will not pretend that dismissal of plaintiffs action is sensible or just. There is no question that defendant actually received the complaint and summons in a timely fashion and was not prejudiced by the deficiencies in service. But Oregon’s arcane rules governing service of process make no allowance for actual notice and, thus, compel such technically correct, but practically absurd, results. Amendment, not judicial ingenuity, is the answer.
I respectfully dissent.
When construing statutes, we first examine the text and context of the statutory provision. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). In so doing, words of common usage are given their plain, natural, and ordinary meaning. 317 Or at 611. Webster’s ThirdNew International Dictionary 421 (unabridged 1971) provides the following definitions for “clerk”:
“3 a: an employee or official responsible (as to a corporation or government agency) for correspondence, the keeping of records and accounts * * *.
“[3] b (1): one employed (as in abusiness office) to keep records or accounts or to perform more or less routine office tasks * *
Such a holding would evoke a sign from my youth: “Shakey’s has an agreement with the bank: Shakey’s doesn’t cash checks, and the bank doesn’t make pizza.” In general, bartenders don’t process documents, and secretaries don’t mix drinks. Sam Malone was not Della Street.
The majority suggests that, notwithstanding Meredith’s affidavit, service could be deemed sufficient because clerk status should be judged “from the perspective of the person serving the summons” and because the bartender told the process server that she would “make sure” that the papers were given to Meredith. 133 Or App at 320-21 n 6. That reasoning is remarkable. By logical extension, any employee who has regular contact with the public and with the registered agent can be deemed a “clerk” so long as he or she volunteers to transmit the summons and complaint, regardless of his or her actual job duties. Thus, service on an accommodating or disgruntled elevator operator, waiter, or parking lot attendant would be sufficient, regardless of whether the registered agent actually received the summons and complaint. That construction effectively reads “clerk” out of ORCP 7D(3)(b)(i).
ORCP 7D(2)(c) provides:
“If the person to be served maintains an office for the conduct of business,*323 office service may be made by leaving a true copy of the summons and complaint at such office during normal working hours with the person who is apparently in charge. Where office service is used, the plaintiff, as soon as reasonably possible, shall cause to be mailed a true copy of the summons and complaint to the defendant at the defendant’s dwelling house or usual place of abode or defendant’s place of business or such other place under the circumstances that is most reasonably calculated to apprise the defendant of the existence and pendency of the action, together with a statement of the date, time, and place at which office service was made. For the purpose of computing any period of time prescribed or allowed by these rules, office service shall be complete upon such mailing.”
On appeal, plaintiff did not argue that, even if the service did not comply with one of the enumerated methods described in ORCP 7, it was adequate because it was effected in a “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.” ORCP 7D(1). See Baker v. Foy, 310 Or 221, 225-26, 797 P2d 349 (1990). Consequently, I express no opinion as to whether the service in this case satisfied that standard.
Reference
- Full Case Name
- Robert ABBOTTS, Appellant, v. David Patrick BACON, a Single Person; Douglas Steven Bacon, a Single Person, Defendants, and TILLICUM CLUB, INC., an Oregon Corporation, Respondent
- Cited By
- 9 cases
- Status
- Published