MANN v. HOBBICK, 49233-1-I (Wash.App. 7-1-2002)

PER CURIAM.

Under RCW 4.28.080(15), service may be accomplished by delivering a copy of a summons to the defendant personally. Service is complete when the process server attempts to tender the summons to the defendant while he or she is in a position to accomplish that task. A defendant cannot defeat service simply by refusing to accept the summons. Here, the process server did not attempt to hand the summons to the defendant, but rather left the documents on his front porch. The trial court therefore properly dismissed the plaintiff's claim for lack of proper service, and we affirm.

On December 9, 1997, Jodey Mann was involved in a motor vehicle accident. The other car in the accident was registered to Gary Hobbick. Hobbick maintains that neither he nor his wife were in the car at the time of the accident, and that his son was the driver of the vehicle.

On December 5, 2000, Mann filed a complaint against Hobbick for damages. On March 3, 2001, Richard Marlow, a process server, went to Hobbick's house. Marlow approached Hobbick, who was outside doing yard work, and asked if he was Gary Hobbick. Believing that Marlow was a salesperson, Hobbick replied, `no,' and went into his house. Marlow began to leave, but then saw the name Hobbick on the mailbox. Marlow therefore suspected that Hobbick had lied to him. Marlow went back up to the house and left a copy of the summons and complaint on the front porch. He called out that Hobbick had been served. According to Marlow, Hobbick saw him place the documents on his front porch.

On April 10, 2001, Hobbick's attorney entered a notice of appearance in the matter. April 19, 2001, Hobbick filed an Answer to Mann's Complaint that alleged affirmative defenses including expiration of the statute of limitations and insufficiency of service of process. Thereafter, Hobbick moved for summary judgment, arguing that Mann had failed to accomplish service of process within the applicable statute of limitations. In response, Mann argued that Marlow had properly effected service. The trial court granted Hobbick's motion for summary judgment. Mann now appeals.

Summary judgment is appropriate if, considering the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); CR 56(c). Mann contends that the trial court erred in granting Hobbick's motion for summary judgment, arguing that: `Reasonable minds could have reached the conclusion that proper service had been effected on defendant Hobbick.' Brief of Appellants at pp. 4-5.

In order to properly effectuate service, `The summons need not actually be placed in the defendant's hand.' United Pac. Ins. Co. v. Discount Co., 15 Wn. App. 559, 562, 550 P.2d 699 (1976). Rather, service is complete where the process server attempts to "yield possession and control of the documents" to the defendant while the server is positioned in a manner to accomplish that act. United Pac. Ins. Co., 15 Wn. App. at 562.

Mann relies on United Pac. Ins. Co. to support her claim that service was accomplished here. We believe that United Pac. Ins. Co. is distinguishable. In that case, the process server attempted to serve a copy of the summons and complaint on the defendant's wife. The process server asked the wife her name, who responded by asking what he wanted.

When the process server told her that he had legal papers for her, she slammed the door in his face, knocking the papers from his hand. As the court noted, service would have been accomplished `except for her obvious attempt to evade service by slamming the door after the papers had been held out to her.' United Pac. Ins. Co., 15 Wn. App. at 562.

In contrast, the process server in this case did not inform Hobbick that he had legal papers for him until after Hobbick was inside his house.

The record is silent as to whether Hobbick was able to hear Marlow's comment that he had `been served' from inside the house. While Hobbick lied about his name, he claims that he did so because he believed Marlow was a salesman, not to evade service. Indeed, nothing in the record suggests that Hobbick was aware of the legal action against him until he later found the summons and complaint on his porch.

Further, Marlow never attempted to hand Hobbick the summons and complaint while he was in a position to do so. After asking Hobbick his name, Marlow was in the process of leaving the residence when he saw the name Hobbick on the mail box. By the time Marlow got back to the house, Hobbick was inside. Marlow did not ring the doorbell or wait for Hobbick to leave in order to attempt to hand him the documents. Instead, he simply left the summons and complaint on Hobbick's doorstep.

Hobbick argues that this case is more akin to Weiss v. Glemp, 127 Wn.2d 726, 734, 903 P.2d 455 (1995). We agree. In Weiss, the defendant was a Polish cardinal who was on a three-day pastoral visit to Seattle. A process server knocked on the door of the rectory where the cardinal was staying and advised a priest that he had legal documents for the cardinal.

The priests at the rectory asked the process server to leave. The process server waited outside for two hours. He then approached a large window and saw the cardinal sitting inside. The process server held up the summons and complaint, yelled that the defendant was being served, and left the documents on the windowsill. The Supreme Court held that leaving the documents on the windowsill did not amount to proper service under RCW 4.28.080(15).

We likewise hold that Marlow did not serve Hobbick by leaving a copy of the summons and complaint on his doorstep. As in Weiss, `Without question, the service here failed to comply with the specific terms of the statute,' because the process server did not deliver the summons to Hobbick personally, nor leave it with someone of suitable age and discretion at Hobbick's residence. Weiss, 127 Wn.2d at 731. The Weiss court specifically rejected the notion that leaving a copy of the summons on a windowsill substantially complied with RCW 4.28.080(15), and we see no basis to distinguish leaving a copy of the summons on a porch. We therefore affirm the trial court's summary dismissal of Mann's claim against Hobbick.

Finally, we note that Mann's opening brief cites to an unpublished opinion of this court in direct violation of RAP 10.4(h), which states: `A party may not cite as an authority an unpublished opinion of the Court of Appeals.' Unpublished opinions have no precedential value and may not be cited as authority. In re Marriage of Gilbert, 88 Wn. App. 362, 368, 945 P.2d 238 (1997). We therefore decline to consider the unpublished case to which Mann has cited. Further, this court `will ordinarily impose sanctions on a party or counsel for a party who files a brief which fails to comply with [RAP 10.4].' RAP 10.7. Following this rule, we order Mann's attorneys, David H. Gehrke and James S. Burnell, to pay sanctions in the amount of $250 to the Court of Appeals no later than twenty days after the filing date of this opinion.

Affirmed.