January 15, 1991; As Corrected February 7, 1991.
Thompson, J. Green, C.j., and Shields, J., concur.
Russell Romjue appeals the dismissal of his action against Mitch Fairchild. The court dismissed Mr. Romjue's cause of action on summary judgment for failure to timely serve Mr. Fairchild. We reverse.
Mr. Romjue brought this action against Mitch and Jane Doe Fairchild seeking damages for injuries allegedly caused by the negligent operation of a motor vehicle by Mr. Fairchild on May 21, 1986. The action was filed on April 27, 1989.
On August 16, 1989, Mitch Fairchild's attorney notified Mr. Romjue's attorney he intended to move for summary judgment for failure to properly serve Mr. Fairchild within the 3-year statute of limitation. The 3-year statute expired on May 21, 1989, and the 90-day period thereafter during which service can be perfected under RCW 4.16.170*fn1 expired on July 27, 1989. Mr. Fairchild's motion for summary judgment was filed October 2, 1989.
According to the affidavits in the record, on April 27, 1989, process server Dina Navejar went to 910 S. Neel Court, Kennewick, Washington. In her affidavit, Ms. Navejar states she rang the bell, and a woman answered the door. When Ms. Navejar asked if Mitch Fairchild was
there, the woman responded: "He is not here right now." The woman then stated either, "May I help you?" or "Can I take a message?" The woman also stated that she was Mrs. Fairchild. Ms. Navejar told the woman that she was looking for Mitch Fairchild to serve him with a summons and complaint. Ms. Navejar produced the papers, and Mrs. Fairchild withdrew into her house. Ms. Navejar laid the papers at her feet, telling her that because she was Jane Doe Fairchild, she was authorized to leave the papers with her.
Judy Fairchild's affidavit disputes Ms. Navejar's account of their conversation. According to Mrs. Fairchild, she told the process server she was Mitch Fairchild's mother, but he no longer lived at that address. Mitch Fairchild attests he moved from his mother's residence in August 1988, and has continuously lived in government subsidized housing in Ellensburg, Washington, since that time. He further states he has never had any intention of moving back to his mother's residence. While in Ellensburg, he has listed his occupation as "student".
The law firm of Raekes, Rettig, Osborne, Forgette & O'Donnell filed a notice of appearance on behalf of "Mitch and Jane Doe Fairchild" on May 5, 1989. On May 8, Mr. Romjue's counsel sent an "Affidavit of Service" to the Benton County clerk for filing, with a copy to Mr. Fairchild's counsel. The affidavit recites that service was made on Mr. Fairchild by leaving a copy of the summons and complaint with "Jane Doe Fairchild" at 910 S. Neel Court, Mr. Fairchild's "residence and usual place of abode".
Later that month, counsel for Mr. Fairchild sent "Defendant's First Set of Interrogatories and Request for Production of Documents" and a "Request for General and Special Damages"*fn2 to Mr. Romjue's counsel, for Mr. Romjue to answer. On June 5, 1989, Mr. Romjue's counsel wrote Mr. Fairchild's counsel:
Please be advised that it is my understanding that the defendants have been served in the above matter [ Romjue v. Fairchild ]. Accordingly, enclosed are the original and a copy of our interrogatories and a Request for Production of Documents for ...