Bouchra Agour v. Ian & Jane Doe Dalrymple, Resps. ( 2014 )

20!^ SEP 29 ArilhOb
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BOUCHRAAGOUR,
No. 70206-8-1
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
IAN M. DALRYMPLE and JANE DOE
DALRYMPLE, husband and wife, and the
marital community comprised thereof,
Respondents. FILED: September 29, 2014
Appelwick, J. — Agour appeals a summary judgment dismissing her
personal injury suit against Dalrymple for insufficient service of process. She
contends the superior court abused its discretion in denying her motions to
continue the summary judgment hearing and to consolidate that lawsuit with a
second, identical suit she filed against Dalrymple. She also contends the court
erred in granting summary judgment. The court was within its discretion in
denying Agour's motions, but it erred in granting summary judgment. We reverse
and remand for further proceedings.
FACTS
On October 5, 2009, Bouchra Agour allegedly suffered injuries when her
car was struck from behind by a car driven by Ian Dalrymple.
No. 70206-8-1 / 2
On January 26, 2012, Agour filed the first of two identical lawsuits against
Dalrymple. Process server Michael James made three unsuccessful attempts to
serve Dalrymple at his Seattle residence.
According to James, he successfully served Dalrymple on June 7, 2012.
His affidavit of service states in pertinent part:
Mr. Dalrymple can best be described as a 40ish white male, crew
cut blonde, light brown hair about 6'0", 180 lbs. I spoke with his
neighbor. . . and confirmed the correct address for Mr. Dalrymple
prior to service today. Upon service Mr. Dalrymple initially denied
his identity stating, "He is not home right now", but took the
paperwork when I noted this was for his auto accident in October of
2009 and he needed to get in touch with his insurance carrier, State
Farm. He thanked me.
On July 23, 2012, Dalrymple answered the complaint and asserted the
affirmative defense of insufficient service of process.
On August 15, 2012, Agour refiled her complaint under a new cause
number. Process server Michael James attempted, but failed, to serve
Dalrymple with this second suit multiple times in August and September 2012.
On September 10, 2012, copies of the second summons and complaint were left
with "Jane Doe" who said she had evicted Dalrymple and had no forwarding
information. Agoura subsequently attempted service of the second suit by
publication and with the Secretary of State.
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No. 70206-8-1 / 3
On November 1, 2012, Dalrymple moved for summary judgment in the
initial suit, arguing there was insufficient service of process. In a supporting
declaration, he alleged in part as follows:
... On June 7, 2012, . . . [n]o adult other than me resided at
[my address].
. . . I am 42 years-old, with dark brown hair, and I weigh
around 172 pounds. I do not have a crew cut and did not have a
crew cut on June 7, 2012.
... I was not physically handed legal papers in this matter by
anyone at any time. Legal papers . . . were left at my residence on
June 7, 2012, either under the mat or taped to the door.
... Mr. Winsor III visited me in June of 2012 (I do not recall
the exact dates of his visit). Mr. Winsor III is married and lives in
New Zealand. Mr. Winsor III appears to be in his 40s, had a crew
cut when he visited me, and otherwise appears to be the individual
described in the "Affidavit of Service". . . .
... Mr. Winsor III did advise me that someone came by the
house with legal papers while I was away, and also told me
something to the effect of "I told them that I was not you, but they
would not believe me." To my understanding, Mr. Winsor III did not
accept the papers, but they were left at my residence anyway.
... Mr. Winsor III was not staying overnight at my residence
on June 7, 2012.
Dalrymple also submitted a declaration from Henry Winsor III. Winsor
alleged in part:
... On June 7, 2012, I had blonde hair which was trimmed
short in a "crew cut" style.
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No. 70206-8-1/4
. . . The process server asked if I was Ian Dalrymple. I told
him I was not, and that I was "Henry." The process server said
something to the affect of "Well I have a description of Ian
Dalrymple and you fit the description." I offered to show him my
[identification] but he said that didn't matter. At that point he
shoved papers at me and said I had to take them and that I had
"been served." I told him that I was not Ian and I would not accept
the papers. ... I closed the door. He said through the door that he
was leaving the papers at the door. I said "Fine; I am not
responsible for them."
. . . I am married and live at [address] Auckland, New
Zealand. I am not related to Ian Dalrymple and I did not live at Mr.
Dalrymple's house, nor was I resident therein, on June 7, 2012. I
did not stay the night at Mr. Dalrymple's residence the night before
or after June 7, 2012.
On February 22, 2013, Dalrymple moved for summary judgment in the
second lawsuit.
On March 1, 2013, Agour filed a response to the motion for summary
judgment in the first suit.
On March 6, 2013, nine days before the first summary judgment hearing
and sixteen days before the second, Agour moved to consolidate the two cases
and to continue the first summary judgment hearing. Dalrymple opposed the
motion, arguing that Agour had known of the first summary judgment motion
since November 2012, and that the proper procedure for eliminating redundant
lawsuits was dismissal of one suit under CR 41, not consolidation.
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No. 70206-8-1 / 5
On March 14, 2013, the court denied the motion to consolidate. It noted
that Agour had sought an expedited decision and had not filed a reply to
Dalrymple's response.
On March 15, 2013, the court heard argument on the motions to continue
and for summary judgment on the first suit. Dalrymple's counsel pointed out that
Agour had four months to conduct discovery and should not receive a
continuance. The court agreed, stating that "discovery could have been had at
any time but has not been attempted." The court then granted summary
judgment, ruling that "the server's objective belief that somebody may be the
individual is not what's relevant. What is relevant is did you actually serve the
defendant by proper substitute service or by personal service? And there was
neither."
On March 18, 2013, the parties entered a stipulated order dismissing
Agour's second, identical suit with prejudice.
Agour filed notices of appeal from the dismissal of her first lawsuit and the
order denying consolidation. A commissioner of this court ruled that the order
dismissing the first suit was appealable as a matter of right and that the appeal
would bring up the consolidation ruling for review. There being no need or basis
for discretionary review of the order denying consolidation, the Commissioner
denied discretionary review and dismissed that appeal.
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No. 70206-8-1 / 6
DECISION
Agour first contends the court abused its discretion in denying her motions
for consolidation and a continuance. There was no abuse of discretion.
We will not disturb a decision denying a continuance absent a manifest
abuse of discretion. Lewis v. Bell. 45 Wash. App. 192, 196, 724 P.2d 425 (1986).
A court properly denies a continuance where the requesting party does not offer
a good reason for the delay in obtaining the desired evidence, jd. at 196. Here,
Agour's counsel claimed to have had no opportunity to take the deposition of
Henry Winsor in New Zealand. But, as the trial court noted, the motion for
summary judgment had been pending for nearly five months "and discovery
could have been had at any time but [was not] attempted." The court was within
its discretion in denying a continuance.
For similar reasons, the court did not abuse its discretion in denying
consolidation. Leader Nat'l Ins. Co. v. Torres. 51 Wash. App. 136, 142, 751 P.2d
1252 (1988), affd, 113 Wash. 2d 366, 779 P.2d 722 (1989) (decision regarding
consolidation will be reversed only upon a showing of abuse of discretion and
resulting prejudice). CR 42(a) provides:
When actions involving a common question of law or fact are
pending before the court, it may order a joint hearing or trial of
any or all the matters in issue in the actions; it may order all the
actions consolidated; and it may make such orders concerning
proceedings therein as may tend to avoid unnecessary costs or
delay.
No. 70206-8-1 / 7
In this case, the motion to consolidate was filed more than four months after the
initial motion for summary judgment, after briefing on the summary judgment
motions, and just before the hearings on both motions. And, as Dalrymple
correctly points out, the second suit was entirely unnecessary and duplicative
since Agour could have simply served Dalrymple again in the first suit. In these
circumstances, we cannot say the court abused its discretion.
The remaining issue is whether the court erred in dismissing Agour's first
lawsuit on summary judgment. We note initially that when a defendant seeks
dismissal for lack of personal jurisdiction, the plaintiff normally bears the initial
burden of establishing a prima facie case of sufficient service. Streeter-Dvbdahl.
157 Wash. App. 408, 412, 236 P.3d 986 (2010). An affidavit of service, however,
"is presumptively correct, and the party challenging the service of process bears
the burden of showing by clear and convincing evidence that service was
improper." id; Leen v. Demopolis. 62 Wash. App. 473, 478, 815 P.2d 269 (1991).
The parties in this case did not argue these principles below or on appeal. Nor
did the court mention them in its oral and written rulings. Instead, the motion to
dismiss was argued and decided under CR 56 and traditional principles of
summary judgment.
Summary judgment is appropriate only if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. CR
56(c). The moving party bears the initial burden of showing the absence of an
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No. 70206-8-1 / 8
issue of material fact. Right-Price Recreation, LLC v. Connells Prairie Cmtv.
Council. 146 Wash. 2d 370, 381, 46 P.3d 789 (2002). If the moving party satisfies
that burden, the burden shifts to the nonmoving party to demonstrate an issue of
fact. Seven Gables Corp. v. MGM/UA Entm't Co.. 106 Wn.2d 1,13, 721 P.2d 1
(1986). On review, we engage in the same inquiry as the trial court and view the
facts in a light most favorable to the nonmoving party. Right-Price Recreation.
146Wn.2dat381.
A defendant can move for summary judgment in one of two ways. It can
submit its version of the facts and allege there are no genuine issues under those
facts, or it can elect to simply point out the absence of evidence supporting the
plaintiffs case. Guile v. Ballard Cmtv. Hosp., 70 Wash. App. 18, 21, 851 P.2d 689
(1993). By submitting declarations and arguing that they demonstrated the
absence of an issue of fact regarding proper service,1 Dalrymple elected the first
method of moving for summary judgment.
In support of his motion, he submitted a personal declaration and the
declaration of Henry Winsor III. Dalrymple's declaration described himself as 42
years old, around 172 pounds, with dark brown hair. He alleged he "did not have
a crew cut on June 7, 2012." He denied receiving service and alleged that the
1 He argued that the there was no issue of fact as to whether a summons
was served by delivering a copy "to the defendant personally, or by leaving a
copy of the summons at the house of his or her usual abode with some person of
suitable age and discretion then resident therein." RCW 4.28.080(15).
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No. 70206-8-1 / 9
person James attempted to serve was his friend, Henry Winsor III. He stated
that "Mr. Winsor III appears to be in his 40s, had a crew cut when he visited me,
and otherwise appears to be the individual described in the 'Affidavit of Service.'"
Winsor's declaration stated that he was the person James attempted to
serve. He alleged he had blonde hair and a crew cut on the service date. He did
not, however, address the other physical characteristics of the person described
in James' affidavit of service. He claimed he told James his name and offered to
show him identification. He also claimed that the service papers were simply left
on the porch and that he was visiting, but not residing with, Dalrymple on the
service date. Based on these declarations, Dalrymple argued that he was
entitled to summary judgment because James's description of the hair of the
person he served did not match Dalrymple's self-description but did match
Winsor's.
In response, Agour noted that (a) James' description of the person he
served matched Dalrymple's self-description in nearly every respect, (b)
Dalrymple presented no evidence distinguishing himself from James' description
of a six foot white male, (c) Winsor is a New Zealand resident and the person
James served spoke with an American accent, (d) the accent James heard was
similar to the one he heard when he spoke to Dalrymple by phone prior to the
service date, and (e) James denied Winsor's version of the statements made
during the attempted service, as well as Winsor's and Dalrymple's claim that the
No. 70206-8-1/10
summons was left on the porch. Agour requested an evidentiary hearing to
resolve issues of fact and credibility.
Viewing the evidence in a light most favorable to Agour, we conclude
Dalrymple did not carry his burden of showing the absence of a genuine issue of
fact. In fact, Dalrymple's submissions did just the opposite. His own declaration
demonstrated that he either matched, or did not dispute his resemblance to,
every physical characteristic of the person James described in his affidavit
except for the person's hair color and style. And, when viewed in a light most
favorable to Agour, the differences in the hair descriptions were insufficient to
warrant summary judgment. The color difference—light brown versus dark
brown—was slight. And, Dalrymple's allegation that he did not have a crew cut
on the service date did not rule out that his hair was short and/or worn in a
manner similar to a crew cut.
Similarly, while Winsor claimed he had blonde hair and a crew cut on the
service date, neither he nor Dalrymple specifically addressed whether Winsor
matched the rest of the physical description provided by James. Winsor said
nothing about his age, weight, height, skin color, or accent. To the extent
Dalrymple addressed those attributes, he did so in extremely vague and
conclusory terms, stating that "Mr. Winsor III appears to be in his 40's, had a
crew cut when he visited me, and otherwise appears to be the individual
described in the 'Affidavit of Service.'" (Emphasis added.) Such vague
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No. 70206-8-1 /11
allegations are insufficient to demonstrate the absence of a material issue of fact.
Thus, summary judgment was error.
In addition, despite being denominated as a motion for summary
judgment, the motion was and should have been treated as a motion to dismiss.
As noted above, an affidavit of service is presumptively correct and the
defendant must demonstrate insufficient service by clear and convincing
evidence. Streeter-Dvbdahl. 157 Wash. App. at 412. Dalrymple's and Wilson's
declarations were plainly insufficient to meet this standard.
In sum, the court erred in granting summary judgment. The continuance
and consolidation rulings are affirmed. The summary judgment is reversed
without prejudice to further proceedings concerning the sufficiency of service.
WE CONCUR:
V-P^/A^t^. CO,
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