Opinion
No. 29231-2-III
10-27-2011
GAVIN DEFELICE, Appellant, v. LAURA JONES and BRIAN JONES, wife and husband, Respondents.
UNPUBLISHED OPINION
Korsmo, J. — The trial court dismissed this action because service was not accomplished within the statute of limitations period. The court also sanctioned counsel for improperly seeking service by mail. This appeal challenges those rulings and also raises a claim that the trial court was biased against counsel. We affirm.
FACTS
An automobile accident on August 2, 2006, precipitated this litigation. As a result of the accident, Gavin DeFelice filed suit against Linda Jones and her husband, Brian, on July 30, 2009. The Spokane County Superior Court promptly assigned the case to the Honorable Kathleen M. O'Connor. Clerk's Papers (CP) at 7. The defendants were insured by Safeco Insurance Company; prior to the suit, counsel for Mr. DeFelice had been negotiating with Safeco.
Mr. DeFelice was unable to accomplish service at a street address supplied by Safeco; it was an out-of-date location. He attempted to serve a subpoena on Safeco by leaving it with a security guard at a local Safeco field office. Safeco informally advised counsel for Mr. DeFelice of the contact information it had for the Joneses—the same street address it had previously supplied, as well as a post office box.
On October 7, 2009, Mr. DeFelice moved for permission to serve the Joneses via mail at the post office box; he also moved to compel Safeco's compliance with his subpoena. Separate counsel appeared for the Joneses and for Safeco; each sought sanctions for having to respond to the motions. The competing motions were heard before the Honorable Kathleen O'Connor on October 16, 2009. The court denied the plaintiff's motions, ruling that there was no evidence about efforts made to locate the defendants and, therefore, it was improper to authorize service by mail at this time. The court also noted that service on a post office box was not allowed by statute. The court denied the motion to compel Safeco to comply with the subpoena because counsel had not complied with the statutory process for serving a foreign insurer.
The court granted the motions for sanctions, finding that an effort to serve the post office box was frivolous because it was not allowed by the statute. The court also concluded that because Safeco was not properly served, sanctions were appropriate. The court eventually ordered sanctions of $2,154.50 for the motion to serve by mail and $946 for the motion to compel. Three days after the hearing, Safeco was served with the subpoena pursuant to the statute.
Plaintiff moved for reconsideration of the court's rulings on his motions, as well as the sanctions ruling. Counsel argued that because Safeco eventually supplied the same inaccurate address information once it was properly served, it was intentionally frustrating efforts to serve the Joneses. He also argued that the trial court should have recused because of personal animosity toward counsel. CP at 150. The motion for reconsideration was denied. CP at 214-215.
The defendants filed a motion for summary judgment based on failure to serve them before the statute of limitations had run. The trial court granted the motion. Mr. DeFelice then timely appealed to this court.
ANALYSIS
This appeal challenges the denial of plaintiff's motions, the decision to impose sanctions, the summary judgment ruling, and the failure of the trial court to recuse. Each is addressed in turn.
Plaintiff's Motions. Plaintiff initially argues that the court erred in denying his motions. We disagree.
The statute of limitations for personal injury actions is three years. RCW 4.16.080(2). When an action is commenced, service needs to be accomplished within 90 days of filing. RCW 4.16.170. If it is not, then "the action shall be deemed not to have been commenced for purposes of tolling the statute of limitations." Id. Service on a person is accomplished by personally delivering a summons to her, "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). Service by mail is allowed when a "person cannot with reasonable diligence be served." RCW 4.28.080(16). The court rules similarly permit service by mail in situations where service by publication is allowed. CR 4(d)(4). Service by publication is permitted when a person "cannot be found within the state." RCW 4.28.100.
The question facing the trial court was whether Mr. DeFelice had acted diligently and established that the Joneses could not be found within the state. The essence of plaintiff's factual allegation is found in this paragraph of counsel's declaration:
Service should be made by mail because the Defendants cannot be found within this state, the Defendants' attorney refuses to give their address toCP at 55.
Plaintiff, Defendant's attorney refuses to comply with a Notice of Deposition previously filed and served upon him requiring Defendants' presence, and Defendants' insurance company, Safeco Insurance of Illinois, has given a false address for Defendants and also has refused to honor a subpoena previously served upon them which required that they provide Defendants' current address and phone number.
The problem with this declaration is exactly what the trial court identified—there is no indication of what steps the plaintiff had taken to serve the defendants. Did the plaintiff even undertake any attempt at service? The record does not reflect that anything was done other than to try and get an address from Safeco. Was there a records search? Was there an attempt at service at the "false" address? The record simply does not show that anything was done. It merely contains the conclusory allegation that the defendants could not be found within the state.
Based on this record, the trial court did not err by denying the motion for service by mail. It was the only ruling the court could make consistent with the statute and rule.
An additional problem is that the motion for mail service identified the post office box as the location to send the substitute service. However, substitute service to a post office box is expressly prohibited by statute. RCW 4.28.080(16), which provides for alternative means of service, concludes with this sentence: "For the purposes of this subsection, 'usual mailing address' does not include a United States postal service post office box or the person's place of employment." The trial court correctly determined that the motion failed for this additional reason.
Plaintiff failed to provide a factual basis for his motions and it would have been contrary to law to authorize service at the post office box. The trial court did not err in denying the plaintiff's motions.
Plaintiff does not assign error to the trial court's ruling on the motion to compel Safeco to comply with the subpoena, nor does he argue that issue. He subsequently properly served Safeco and received the information it had.
Sanctions. Plaintiff next challenges the trial court's decision to impose sanctions for frivolous motions. He has not established that the trial court abused its discretion in these rulings.
A trial judge has discretion under CR 11 both to impose sanctions and the amount of any sanction that is imposed. Skimming v. Boxer, 119 Wn. App. 748, 754, 82 P.3d 707, review denied, 152 Wn.2d 1016 (2004). The same standard applies to sanctions entered under RCW 4.84.185. Fluke Capital & Mgmt. Servs. Co. v. Richmond, 106 Wn.2d 614, 625, 724 P.2d 356 (1986); Zink v. City of Mesa, 137 Wn. App. 271, 277, 152 P.3d 1044 (2007), review denied, 162 Wn.2d 1014 (2008). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, the trial court entered its sanction rulings under CR 11. While plaintiff has appealed from both orders, he did not assign error to the sanction ruling related to his efforts to attempt to compel Safeco to comply with the original subpoena left with a security guard. He also does not attempt to argue that service was proper or that the trial court erred in declining to enforce that subpoena. Accordingly, we will not address that sanction ruling.
In relevant part, CR 11(a) states:
The signature of a party or of an attorney constitutes a certificate by the party or attorney that the party or attorney has read the pleading, motion, or legal memorandum, and that to the best of the party's or attorney's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is well grounded in fact; (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law.
The motion to permit mail service suffered from two defects—there was no factual basis for the request and it sought to mail to a post office box contrary to statutory command. CR 11 permits sanctions, including attorney fees, when an attorney advances litigation lacking a legal or factual basis without adequate investigation of the legal and factual bases for a case. Roeber v. Dowty Aerospace Yakima, 116 Wn. App. 127, 141, 64 P.3d 691, review denied, 150 Wn.2d 1016 (2003).
Given the above-noted defects in the service by mail motion, the trial court certainly had tenable grounds for imposing sanctions. Plaintiff simply did not provide any basis for the trial court to rule in his favor on the need for service by mail, and then he proposed a legally improper address to which to mail the summons. There may well have been a factual basis for obtaining permission to serve by mail, but the trial court correctly noted it had not been supplied. CR 11 requires that counsel have a factual basis for filing a motion. If the plaintiff had that basis, it was not articulated here. Instead, the plaintiff argued that since the address supplied by the insurance company was bad (and there was no proof provided that it was), the defendants must be hiding and service by mail was justified. Much more was required.
Counsel did seek to orally amend the motion to have service mailed to the former address.
The failure to explain what efforts, if any, plaintiff undertook to serve the defendants left the trial court without any basis for granting the motion. This was a tenable basis for sanctioning counsel under CR 11.
Plaintiff has not established that the trial court abused its discretion in this matter.
Reconsideration. Plaintiff sought reconsideration, supported in part by an investigator's report that detailed some of the efforts subsequently made to locate the Joneses. He challenges the trial court's denial of that motion.
We review a trial court order on reconsideration for a manifest abuse of discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002); Drake v. Smersh, 122 Wn. App. 147, 151, 89 P.3d 726 (2004). Here, the trial court questioned whether the report constituted newly discovered evidence, but noted that no effort had been made to explain why it should be so treated. CP at 215. The court also declined to take judicial notice of Safeco's business practices because no authority had been provided suggesting it could do so. The court also expressly restated its position that merely because Safeco had provided a bad address, it was not necessarily trying to deceive counsel. There being no new reason for reversing itself, the court denied reconsideration. CP at 215.
These were tenable grounds for denying reconsideration. Newly discovered evidence can be considered on reconsideration if the party explains why the evidence could not have been produced in the original proceeding. CR 59(a)(4). While presenting and citing to the new material, plaintiff did not attempt to explain why he had not done so before. Without plaintiff making that threshold showing, the trial court was under no obligation to consider the evidence. Similarly, without a basis for taking judicial notice of an insurance company's presumed practices, the trial court could not do so.
Finally, the trial court certainly was under no obligation to draw the conclusion that Safeco was actively deceiving plaintiff's counsel merely because it supplied an out-of-date address for its insured. It was very likely that the company did not realize the Joneses had moved until this litigation erupted since it appears the post office box was used for communication. Regardless, this court is not in a position to find persuasive that which a trial court says is not persuasive to it. Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009), review denied, 168 Wn.2d 1041 (2010).
The record reflects very tenable reasons for denying reconsideration. There was no abuse of discretion.
Summary Judgment. Plaintiff next argues that the trial court erred in granting summary judgment. His argument is largely dependent upon this court accepting some of his prior arguments.
This court reviews a summary judgment de novo, performing the same inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). The facts, and all reasonable inferences to be drawn from them, are viewed in the light most favorable to the nonmoving party. Id. If there is no genuine issue of material fact, summary judgment will be granted if the moving party is entitled to judgment as a matter of law. Id.
Here, it is clear that the statute of limitations had run. As noted previously, there is a three year period for bringing a personal injury action. RCW 4.16.080(2). A plaintiff is required to serve the defendant within 90 days of filing the case. RCW 4.16.170. Service was not accomplished at all, let alone within 90 days of the filing of this action on July 30, 2009. Accordingly, the statute of limitations had run without service being timely accomplished. Id.
Under these facts, the trial court had to grant the motion for summary judgment. There was no error.
Recusal. Last, counsel for plaintiff argues that the trial court was required to recuse due to personal bias against counsel. There are several failings with this argument, not the least of which is that counsel never requested the action.
There are two methods of disqualifying a judge. First, a judge may disqualify for any of the reasons noted in former CJC 3(D) (2002), including the circumstance in which a judge has a personal bias or prejudice concerning the case or party. Former CJC 3(D)(1)(a). Second, a party or an attorney has a right to a change of judge by filing an affidavit of prejudice. RCW 4.12.040, .050. The statutory right belongs to the litigant or his counsel and must be exercised within the limitations imposed by the statute. Plaintiff did not attempt to use the affidavit of prejudice procedure here despite knowing that the case had been assigned to Judge O'Connor when it was filed. The statute does not provide a basis for disqualification in this case.
The remaining issue was whether the trial judge was obligated to recuse. The decision to recuse or not is reviewed for abuse of discretion. Wolfkill Feed & Fertilizer Corp. v. Martin, 103 Wn. App. 836, 840, 14 P.3d 877 (2000). It is the burden of the party demanding recusal to establish the claim. Id. at 841. That did not happen here. Counsel never filed a motion asking Judge O'Connor to recuse. In fact, the issue was not even raised except as part of a declaration filed with the motion to reconsider. We believe more is required of counsel than burying an argument in the midst of reconsideration materials. Whether oral or written, there should be a request that the judge step down.
It appears that counsel initially was satisfied with having Judge O'Connor hear the case since he did not exercise his statutory right to disqualify her despite learning about her assignment 10 weeks earlier. He likewise did not ask her to recuse before presenting his motions to her. It was only after the motions were denied and sanctions imposed that the request to recuse was made. That comes far too late in the process, particularly where the matters counsel complained about were known to him well before this action was filed.
In any respect, whether the personal bias alleged here required recusal was a matter left to the discretion of the trial judge. In some instances involving familial and financial relationships, a judge must recuse when the matter is called to her attention. E.g., former CJC 3(D)(1)(c), (d). In this instance, it was up to the trial judge to decide if the allegation was meritorious. From the examples given—that counsel has twice had the trial judge reversed on appeal and complained to the Judicial Fitness Committee—we will not infer bias. If, however, counsel believed that the trial court was actually biased, we do not understand why he allowed the matter to proceed without filing an affidavit of prejudice or, at a minimum, a motion to recuse.
The record does not demonstrate the alleged bias. The trial judge did not err in hearing the case.
Attorney Fees. Both respondents seek additional sanctions for responding to an allegedly frivolous appeal. While the appeal is without merit and borders on frivolous, we exercise our discretion and decline to award any further sanctions.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
Korsmo, J.
WE CONCUR:
Kulik, C.J.
Sweeney, J.