                                                                  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




                                             2

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.


                                              3
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.




                                              5

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 ofReview

       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.




                                             6

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,



                                             7

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.



                                              8

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.



                                              9

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 

