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Clay v. Portik

January 10, 1997

LOLITA CLAY, A SINGLE PERSON, APPELLANT,
v.
MICHAEL J. PORTIK AND "JANE DOE PORTIK, HUSBAND AND WIFE, AND THE WASHINGTON MARITAL COMMUNITY COMPOSED THEREOF, RESPONDENTS.



Appeal from Superior Court of Pierce County. Docket No: 94-2-06733-3. Date filed: 05/19/95. Judge signing: Hon. Vicki L. Hogan.

As Amended February 7, 1997.

Authored by Karen G. Seinfeld. Concurring: Carroll C. Bridgewater, David H. Armstrong.

The opinion of the court was delivered by: Seinfeld

SEINFELD, C.J.-- Lolita Clay challenges the Secretary of State's interpretation of the nonresident service of process statute, RCW 46.64.040. We hold that the statute does not require a plaintiff seeking to use the statute to provide the Secretary with the defendant's address or with a certificate of compliance signed by the plaintiff personally, rather than by the plaintiff's attorney. Consequently, we reverse the trial court's dismissal of Clay's action and remand for trial.

FACTS

On July 6, 1991, Portik drove into Clay's car, injuring her and damaging her vehicle. Clay filed a lawsuit against Portik on June 30, 1994, six days before the running of the three-year statute of limitations. RCW 4.16.080(2). Pursuant to RCW 4.16.170, Clay had an additional 90 days to complete service.

Portik had been residing at 3008 N. Narrows Drive in Tacoma but had moved out of state before Clay was able to serve him. Thus, Clay attempted to serve him by using the nonresident service of process statute, RCW 46.64.040. In accordance with statutory requirements, on September 12, 1994, Clay's attorney mailed two copies of the summons and complaint along with a check for $50 to the Secretary of State's office. The attorney also mailed to Portik at his last known address, via registered mail, return receipt requested, a copy of the summons and complaint, notice of service upon the Secretary, an affidavit signed by the attorney describing the steps taken to comply with RCW 46.64.040, and a "due diligence" affidavit signed by the attorney describing her efforts to locate and personally serve Portik. The post office returned the mailing as "unclaimed."

About 19 days later, the Secretary's office returned Clay's documents and filing fee, explaining that Clay had not complied with RCW 46.64.040 because she had not included Portik's address. By this time, the statute of limitations had run. Clay's attorney later refiled the documents and provided the Secretary with Portik's Narrows Drive address.

Portik moved for summary judgment asserting lack of personal jurisdiction. He argued that Clay's attempt to use the statute failed in two ways: (1) service was not timely, and (2) her attorney's affidavit of compliance failed to satisfy the statute's requirement. The trial court granted Portik's motion and dismissed the suit. On appeal, Clay argues that RCW 46.64.040 does not (a) require that a plaintiff provide the defendant's address and (b) prohibit a plaintiff's attorney from submitting an affidavit of compliance on behalf of her client.

ANALYSIS

Under CR 56(c), summary judgment is available only if "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." If, after considering all the evidence, reasonable persons would reach but one Conclusion, the moving party is entitled to summary judgment. Morris v. McNicol, 83 Wash. 2d 491, 494, 519 P.2d 7 (1974). On review, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982). As this is an appeal from the judicial review of an administrative decision, we apply the appropriate standard of review directly to the administrative record. Keene v. Board of Accountancy, 77 Wash. App. 849, 853, 894 P.2d 582, review denied, 127 Wash. 2d 1020, 904 P.2d 300 (1995).

Here, the parties do not dispute the facts; the sole issue is the proper interpretation of RCW 46.64.040. We review a legal determination of an administrative agency under an error of law standard. Jefferson County v. Seattle Yacht Club, 73 Wash. App. 576, 588, 870 P.2d 987, review denied, 124 Wash. 2d 1029, 883 P.2d 326 (1994). Thus, this court may substitute its judgment for that of the Secretary. Jefferson County, 73 Wash. App. at 588. To obtain relief from the Secretary's action, Clay must show that the Secretary acted beyond his statutory authority in rejecting her filing. RCW 34.05.570. Although we defer to an agency's interpretation of an ambiguous statute that is within its special expertise, we do not need the agency's expertise to interpret an unambiguous statute; "we will determine the Legislature's intent from the language of the statute alone." Waste Management of Seattle, Inc. v. Utilities & Transp. Comm'n, 123 Wash. 2d 621, 628-29, 869 P.2d 1034 (1994). Finally, we do not defer to an agency interpretation that is inconsistent with the statute or that decides the scope of its own authority. Waste Management, 123 Wash. 2d at 628; Electric Lightwave, Inc., v. Utilities & Transp. Comm'n, 123 Wash. 2d 530, 536-37, 540, 869 P.2d 1045 (1994).

Here, the statute is unambiguous in its lack of a requirement that a plaintiff provide the defendant's address. Thus, we do not defer to the agency regarding this ruling. Further, as the determination of when an attorney may sign for a client is not within the Secretary's special expertise, that ruling is not entitled to deference either.

As Clay concedes, we must strictly construe the statute. Martin v. Meier, 111 Wash. 2d 471, 479, 760 P.2d 925 (1988); Omaits v. Raber, 56 Wash. App. 668, 670, 785 P.2d 462, review denied, 114 Wash. 2d 1028, 793 ...


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