* Maurice Baker, Appellant v. David Hawkins and Christie Hawkins, Respondents

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FILED
SEPTEMBER 22, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
MAURICE H. BAKER, a single man, 	) 	No. 33228-4-III
)
Appellant, 	)
)
v. 	) 	PUBLISHED OPINION
)
DAVID HAWKINS and CHRISTIE 	)
HAWKINS, husband and wife and the 	)
marital community comprised thereof, 	)
)
Respondents. 	)
LAWRENCE-BERREY, J. - 	We must determine whether service on a contractor,
who spent every day for one month working at the defendants' home, returning only to
his home at night to sleep, is service upon a person "then resident therein" for purposes of
former RCW 4.28.080(15) (2012) (now codified at RCW 4.28.080(16». We hold that
because the contractor was not "actually living in" the defendants' home as required by
Salts v. Estes, 133 Wn.2d 160, 170, 943 P.2d 275 (1997), service was deficient under the
statute. We therefore affirm the trial court's order dismissing this action as barred by the
three-year statute of limitations.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 33228-4-III
Baker v. Hawkins
FACTS
Maurice Baker alleges he was injured in a car accident caused by Christie Hawkins
on December 16,2010. Mr. Baker filed a summons and complaint initiating this action
against Ms. Hawkins and her husband, David Hawkins, for personal injuries and damages
on December 16, 2013. 	Under RCW 4.16.170, the statute of limitations is tolled for 90
days if one or both defendants are served within that period.
On January 11,2014, a Saturday, Mr. Baker's process server served Gary Jellicoe
with the summons and complaint at the Hawkinses' residence on Bainbridge Island,
Washington. The return of service stated that service was made "by delivery to ... Gary
Jellicoe, Cohabitant, W-M, late 50's, a person of suitable age and discretion residing at
the respondent's usual abode." Clerk's Papers (CP) at 21.
Mr. Jellicoe and his wife, Winoma Jellicoe, are general contractors who were hired
by Mr. and Ms. Hawkins to perform work on their Bainbridge Island house. The Jellicoes
completed the work in two phases. While Mr. and Ms. Hawkins were in Mexico on
vacation for the month of January 2014, the Jellicoes worked on the second phase of the
project. While the first phase focused on adding a second floor to the existing structure of
the main house, the second phase focused on removing the carport and building a garage
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No. 33228·4·III
Baker v. Hawkins
in its place with a guest house on top and also building an addition to the south end of the
house for an office.
While Mr. and Ms. Hawkins were gone in January 2014, the Jellicoes worked on
the house full time, including weekends. The Jellicoes generally worked from 8:30 a.m.
until 6:30 p.m. They spent every night at their own home and never slept in the
Hawkinses' home. They had the code for the home's electronic door locking system and
were able to let themselves in or out.
The Jellicoes kept construction tools in the house during the project. They also
monitored the utilities to make sure that the water and power were working properly
when they turned them off and on as part of the construction. They did not use any of the
kitchen appliances during the second phase of the project in January 2014. Mr. Jellicoe
did not use the bathrooms in the main house because there was a portable restroom on the
job site. Ms. Jellicoe would occasionally use the restroom in the main house.
During January 2014, a number of packages were delivered to the Hawkinses'
home containing items that Ms. Hawkins had ordered for the Jellicoes to use during the
construction project, including a toilet, light fixtures, and a few plumbing items. If a
package addressed to Mr. or Ms. Hawkins was left on the porch, Ms. Jellicoe would put
the package inside the house. The Jellicoes never signed for any of the packages.
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No. 33228-4-III
Baker v. Hawkins
Mr. and Ms. Hawkins filed their answer to the complaint on February 24, 2014,
and asserted lack of personal jurisdiction and lack of service. They filed a motion to
dismiss on April 3, 2014, asserting the statute of limitations had run when Mr. Baker
failed to perfect service on them personally within the applicable timeframe. Ms.
Hawkins submitted a declaration to support the motion to dismiss, stating that Mr.
Jellicoe is a contractor who was doing work on her home at the time he was served the
summons and complaint, but that Mr. Jellicoe never resided in the home.
Mr. Baker responded to the motion to dismiss requesting that the court deny the
motion because the statute of limitations was tolled when substitute personal service was
perfected on Mr. Jellicoe. In support of his response to the motion to dismiss, Mr. Baker
submitted a declaration of the process server, Donald DeMers, as well as a declaration
that included excerpts from the depositions of Mr. and Ms. Jellicoe. Mr. and Ms.
Hawkins filed a reply in support of their motion to dismiss. Complete transcripts of the
depositions of Mr. and Ms. Jellicoe were attached as exhibits to the Hawkinses' reply.
In his declaration, Mr. DeMers stated he arrived at the Hawkinses' residence
located at 10800 Broomgerrie Road, Bainbridge Island, Washington 98101 at 4:45 p.m.
on the day in question. He knocked on the front door, and no one answered. He left the
front door and was standing in the driveway next to his vehicle when a man and a woman
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No. 33228-4-III
Baker v. Hawkins
drove to the front of the home in a pickup truck. Mr. DeMers went to speak to the man
when he got out of the truck, and the woman began unloading several bags of groceries
from the truck. The man identified himself as Gary JeIIicoe to Mr. DeMers and explained
that he was not Mr. Hawkins, but that he and his wife were in the process of remodeling
the home and were "living there" while the work was being performed. CP at 35. Mr.
DeMers gave the summons and complaint to Mr. Jellicoe, and Mr. Jellicoe said he would
deliver them to Mr. and Ms. Hawkins. Before Mr. DeMers left the premises, Mr. and Ms.
Jellicoe walked to the front door, unlocked it, and began bringing the groceries into the
home.
At their depositions, the Jellicoes testified that they were unloading packages
related to the construction project when Mr. DeMers came to serve process. 	When Mr.
DeMers approached the Jellicoes, he said he was looking for the Hawkinses' residence.
Ms. JeIlicoe replied that he was at the right place but that Mr. and Ms. Hawkins were not
home. Mr. DeMers then handed the subpoena to Mr. Jellicoe. Mr. Jellicoe stated he told
Mr. DeMers he would put the subpoena in the house and tell Mr. and Ms. Hawkins about
it. Mr. and Ms. Jellicoe denied telling Mr. DeMers that they were staying at or living in
the Hawkinses' residence.
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No. 33228-4-111
Baker v. Hawkins
The trial court granted the Hawkinses' motion and dismissed Mr. Baker's
complaint with prejudice. The order was filed July 25, 2014. Mr. Baker appeals,
contending that service on Mr. Jellicoe satisfied former RCW 4.28.080(15) for substitute
service of process because the undisputed facts establish that the Jellicoes were "then
resident therein" of the Hawkinses' home at the time of service to satisfY the statute.
ANALYSIS
Whether the trial court erred in dismissing Mr. Baker's complaint based on insufficient
service ofprocess
Standard of Review
Under CR 12(c), if a trial court considers matters outside of the pleadings when
reviewing a motion to dismiss, the court must treat the motion as one for summary
judgment. We then review an appeal from an order in that context as we do an appeal
from a summary judgment order. Lowe v. Rowe, 173 Wn. App. 253, 258, 294 P.3d 6
(2012). Summary judgment is proper only if no genuine issues of material fact exist, and
the moving party is entitled to judgment as a matter of law. 	Us. Mission Corp. v. KlRO
TV, Inc., 172 Wn. App. 767, 771-72, 292 P.3d 137, review denied, 177 Wn.2d 1014,302
P.3d 181 (2013). In our review, we consider the facts and all reasonable inferences in the
light most favorable to the nonmoving party. Id. at 772.
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No. 33228-4-Ill
Baker v. Hawkins
Disputed Facts
Here, there are only two disputed facts. The first is whether the Jellicoes were
bringing groceries or construction supplies into the house. For purposes of review, we
will presume the bags contained groceries. The second is whether the Jellicoes told the
process server that they were staying at the Hawkinses' residence. This statement is
hearsay; it is therefore inadmissible and does not create an issue of fact. 	SentinelC3, Inc.
v. Hunt, 181 Wn.2d 127, 141,331 PJd 40 (2014).
Substitute Service
RCW 4.28.080 provides the ways in which a person may be served with a
summons. Generally, personal service is required, but former RCW 4.28.080(15) permits
substitute service if certain requirements are met. 	Substitute service requires
(1) "leaving a copy of the summons at the house of [the defendant's] usual abode"
(2) "with some person of suitable age and discretion" (3) "then resident therein."
Former RCW 4.28.080(15). The only element at issue here is the third one. 	Specifically,
the issue is whether Mr. Jellicoe was "then resident therein" under this statute when he
received the summons and complaint for Mr. and Ms. Hawkins.
The Washington Supreme Court has addressed the "then resident therein" element
in two recent cases. Mr. Baker relies on the first of these two cases, Wichert v. Cardwell,
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No. 33228-4-II1
Baker v. Hawkins
117 Wn.2d 148, 152,812 P.2d 858 (1991), where the court found sufficient substitute
service. There, the defendant wife's adult child, who had her own apartment and
infrequently stayed at the defendants' home, had stayed overnight at the defendants'
residence the night before accepting service on their behalf. ld. at 150.
Mr. and Ms. Hawkins rely on Salts arguing that the facts here are more similar to
the facts in Salts than Wichert. 	In Salts, the court held that service of process on a person
unrelated to the defendant, who was temporarily in the defendant's home to feed dogs and
take in mail, was insufficient for substitute service of process. Salts, 133 Wn.2d at 163
64, 170-71.
A review of these two cases displays tension and even incompatibility between
them. The Wichert court applied a liberal test, noted that "resident" was an elastic term,
and held that whether service was proper should depend upon the Mullane test, i.e.,
"whether [the] method [used] is such that a plaintiff 'desirous of actually informing the
absentee might reasonably adopt to accomplish it.'" 	Wichert, 117 Wn.2d at 151 (quoting
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 315, 70 S. Ct 652, 94 L. Ed.
865 (1950)). The Salts court eschewed a liberal test, took a definitional approach to the
term "resident," and stated that "resident" meant more than "mere presence" and that
"possession of the premises" was insufficient Salts, 133 Wn.2d at 167, 169-70.
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No. 33228-4-III
Baker v. Hawkins
Salts determined that the term "resident" was unambiguous, and as such, required the
court to "apply the language as the Legislature wrote it, rather than amend it by judicial
construction." Id. at 170. 	The Salts court held that "for purposes of [former]
RCW 4.28.080(15) that 'resident' must be given its ordinary meaning-a person is
resident if the person is actually living in the particular home." Id.
Mr. Baker contends that Wichert and Salts should be reconciled by examining
them in the context of due process. But, as recognized by the Salts dissent, Salts
repudiates the expansive approach embraced in Wichert. Id. at 173 (Alexander, J.,
dissenting). Therefore, we determine that the facts of this case must be analyzed under
the Salts "actually living in" rule.
Here, Mr. Jellicoe and his wife spent the entire month of January 2014 working at
the Hawkinses' home on Bainbridge Island. The Hawkinses gave Mr. Jellicoe and his
wife their access code. Mr. Jellicoe and his wife were actually in possession of the home
during the entire month. Mr. Jellicoe was the one person in Washington State during the
month of January 2014 most likely to give notice of the lawsuit to the Hawkinses. The
Jellicoes nevertheless returned to their own home each evening, slept, and departed
therefrom each morning. Mr. Jellicoe was therefore not "actually living in" the
Hawkinses' home. For this reason, we must conclude that service of process on Mr.
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No. 33228-4-III
Baker v. Hawkins
Jellicoe was inadequate under fonner RCW 4.28.080(15), and the trial court properly
dismissed this action.
Affinn.
Lawrence-Berrey, J.
WE CONCUR:
Brown, A.C.J. 	(j
Korsmo, J, 	?
10