Streeter-Dybdahl v. Huynh
Streeter-Dybdahl v. Huynh
Opinion of the Court
¶1 Proper service of process has not been accomplished when the defendant is not personally served and there is insufficient evidence to establish that the address served was the center of the defendant’s domestic activity. Here, the summons and complaint was left with someone who was not the defendant at a house in which the defendant did not reside and only visited occasionally to pick up mail that was sent to her at that address. Thus, the defendant was not properly served and the trial court erred by denying the defendant’s motion to dismiss for insufficient process. Accordingly, we reverse.
FACTS
¶2 On September 20, 2005, David Streeter-Dybdahl and Nguyet Huynh were involved in a car accident. On September 18, 2008, Streeter-Dybdahl filed a negligence lawsuit against Huynh. On November 20, 2008, Huynh’s attorney contacted Streeter-Dybdahl’s attorney and asked for proof and confirmation of service but received no response.
¶3 On November 23, 2008, a process server attempted to serve the complaint on Huynh at the address listed for Huynh in the police report of the accident. That address was listed as 722 Martin Luther King Jr. Way South in Seattle, Washington. The process server served the lawsuit documents on a male adult who was at the Seattle residence at the time. In his declaration of service, the process server stated:
That on the 23rd day of November, 2008 @ 02:19 PM, at the address of 722 MARTIN LUTHER KING JR WAY S, SE*411 ATTLE, within KING County, WA, the undersigned duly served the following document(s): SUMMONS; COMPLAINT FOR DAMAGES; ORDER SETTING CIVIL CASE SCHEDULE in the above entitled action upon NGUYET HUYNH, by then and there, at the residence and usual place of abode of said person(s), personally delivering TWO true and correct copy(ies) of the above documents into the hands of and leaving same with NGUYET HUYNH, A NAMED DEFENDANT, being a person of suitable age and discretion, then resident therein.
Desc[ription]: Sex: MALE - Age: 30’s - Skin: ASIAN - Hair: BROWN - Height: 58 - Weight: 140.
¶4 On December 23, 2008, Huynh, answered the complaint and pleaded insufficient service and lack of jurisdiction. She later filed a motion to dismiss on that basis. Huynh asserted that she was never personally served with the complaint and that she did not live at the Seattle address where the complaint was served.
¶5 In support of her motion to dismiss, Huynh filed a declaration stating that she is a 5'1" tall female, weighing 110 pounds, that her husband is 49 years old and is 5'3" tall, and that she lived at the Seattle address in 2002 but later moved to Lynnwood, where she currently resides. She further stated that she has lived at her current Lynnwood address since 2008 and before that lived at another Lynnwood address for five years. She also submitted property records indicating that she bought her current home in Lynnwood on April 1, 2008.
¶6 In response, Streeter-Dybdahl submitted documentation showing that Department of Licensing (DOL) records listed a Lynnwood address for Huynh effective April 2005, but in January 2006, listed the Seattle address for Huynh, which is still on file as the most current address. Streeter-Dybdahl also submitted King County records showing that Huynh had a previous ownership interest in the Seattle residence but that she had quitclaimed that interest in 2006. He further noted that the police report of the accident listed Huynh’s address as the Seattle address.
¶8 The trial court denied the motion to dismiss without findings. We granted discretionary review.
ANALYSIS
¶9 “Proper service of the summons and complaint is a prerequisite to the court obtaining jurisdiction over a party, and a judgment entered without such jurisdiction is void.”
f 10 RCW 4.28.080 sets forth the requirements for service and provides, in pertinent part:
Service made in the modes provided in this section shall be taken and held to be personal service. The summons shall be served by delivering a copy thereof, as follows:
*413 (15) In all other cases, to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.
¶11 Here, there is no dispute that Huynh was not personally served with the summons and complaint. Thus, the question becomes whether the service amounts to proper substitute service, i.e., that it was served at Huynh’s place of usual abode with a person of suitable age who resides at that address.
¶12 In Gross v. Evert-Rosenberg, service of process was held to be insufficient when the summons and complaint were left with the defendant’s daughter’s husband at a house owned by the defendant but leased to his daughter and her husband.
¶13 Likewise here, service at Huynh’s former residence was not proper substitute service. The record does
¶14 Streeter-Dybdahl relies on Sheldon v. Fettig, where the court recognized that “in appropriate circumstances a defendant may maintain more than one house of usual abode if each is a center of domestic activity where it would be most likely that defendant would promptly receive notice if the summons were left there.”
¶15 But here, as discussed above, there was no evidence to suggest that Huynh actually resided at the Seattle house, much less split her time between that house and her Lynnwood home.
¶16 Streeter-Dybdahl further contends that Huynh waived her claim of insufficient process because there is a genuine issue of material fact about her knowing concealment of the apparent mistaken service upon her brother at the Seattle address. Streeter-Dybdahl relies on Lybbert v. Grant County, which held that the defendant waived the defense by engaging in dilatory conduct or conduct inconsistent with asserting the defense.
¶17 Streeter-Dybdahl contends that likewise here, Huynh’s conduct should result in a waiver. He notes that she had notice of the lawsuit even before service occurred, pointing to the fact that her attorney was preparing an answer even before service was attempted. But as Huynh contends, this does not establish dilatory conduct. In fact, the context of her attorney preparing an answer was in a request for proof and confirmation of service, to which Streeter-Dybdahl’s attorney did not respond. And as Huynh points out, a defendant has no duty to assist the process server.
¶18 Rather, Streeter-Dybdahl must establish willful evasion of process,
¶19 Additionally, unlike in the cases upon which Streeter-Dybdahl relies, the record here does not establish that Huynh was “[lying] in wait” and deprived the plaintiff of the opportunity to cure the service defect.
¶20 Thus, the record does not establish that the error in service was due to any intentional evasion by Huynh. Rather, the record indicates that it was a result of the process server’s mistaken belief that he personally served Huynh and Streeter-Dybdahl’s failure to correct that error before the service deadline. Accordingly, Streeter-Dybdahl fails to establish a waiver of the defense.
¶21 We reverse.
Review denied at 170 Wn.2d 1026 (2011).
To avoid confusion, Tu Huynh will be referred to by his first name.
Commissioner’s Ruling Granting Discretionary Review, Streeter-Dybdahl v. Nguyet Huynh, No. 63708-8-1 (Wash. Ct. App. Aug. 14, 2009).
Woodruff v. Spence, 76 Wn. App. 207, 209, 883 P.2d 936 (1994).
Pascua v. Heil, 126 Wn. App. 520, 527, 108 P.3d 1253 (2005).
Gross v. Sunding, 139 Wn. App. 54, 60, 161 P.3d 380 (2007).
Woodruff, 76 Wn. App. at 210.
Salts v. Estes, 133 Wn.2d 160, 162-63, 943 P.2d 275 (1997).
Sheldon, v. Fettig, 129 Wn.2d 601, 610, 919 P.2d 1209 (1996) (internal quotation marks omitted) (quoting Sheldon v. Fettig, 77 Wn. App. 775, 781, 893 P.2d 1136 (1995)).
85 Wn. App. 539, 933 P.2d 439 (1997).
Gross, 85 Wn. App. at 543.
97 Wn. App. 684,690,985 P.2d 952 (1999) (concluding that “Mr. Anderson, like the defendant in Gross, retained ownership of the [house where process served] but was actually residing at another abode”).
See Vukich, 97 Wn. App. at 690-91 (keeping Washington driver’s license with old address insufficient); Gross, 85 Wn. App. at 541 (continued use of address for voter registration and property tax billing address insufficient); Blankenship v. Kaldor, 114 Wn. App. 312, 317, 57 P.3d 295 (2002) (use of address on checking account insufficient).
Vukich, 97 Wn. App. at 690-91 (continuing delivery of mail to defendant at address where process served not determinative).
129 Wn.2d 601, 612, 919 P.2d 1209 (1996).
Sheldon, 129 Wn.2d at 605.
Sheldon, 129 Wn.2d at 604.
Sheldon, 129 Wn.2d at 612.
Similarly, in Gross, 85 Wn. App. at 543, the court distinguished Sheldon, concluding:
Unlike the facts in Sheldon, where the adult-child defendant was deemed to have more than one usual abode, one in Illinois and one at her parents’ home in Washington [S]tate, here Evert-Rosenberg, the parent, moved to a new home, retaining ownership of the Federal Way house but actually residing in another abode.
141 Wn.2d 29, 1 P.3d 1124 (2000). Streeter-Dybdahl also relies on King v. Snohomish County, 146 Wn.2d 420, 47 P.3d 563 (2002).
Lybbert, 141 Wn.2d at 32-34.
Thayer v. Edmonds, 8 Wn. App. 36, 42, 503 P.2d 1110 (1972).
Rodriguez v. James-Jackson, 127 Wn. App. 139, 147, 111 P.3d 271 (2005).
See Lybbert, 141 Wn.2d at 40.
Reference
- Full Case Name
- David Streeter-Dybdahl v. Nguyet Huynh
- Cited By
- 28 cases
- Status
- Published