Opinion
No. 62628-1-I.
September 8, 2009.
Appeal from the Superior Court, King County, No. 08-2-04746-6, Mary E. Roberts, J., entered October 20, 2008.
Reversed and remanded by unpublished opinion per Agid, J., concurred in by Cox and Ellington, JJ.
Mary Gatuna's process server declared that she served a copy of Gatuna's summons and complaint on a co-resident of Wesly Moore, who rear-ended her, before the statute of limitations ran. To support his claim of insufficient service, Moore offered evidence that he had sold his house at that address and no longer lived there at the time of service. The trial court struck the co-resident's out-of-court statements about where Moore lived and dismissed the case. Because the trial court erred by striking the declaration, we reverse the dismissal and remand for a determination of whether Moore rebutted Gatuna's presumption of service.
FACTS
Moore rear-ended Gatuna's car on February 4, 2005. Gatuna filed her complaint on February 1, 2008, and attempted service on Moore at 2517 56th Avenue NE in Tacoma on February 13, 2008. Moore moved to dismiss Gatuna's complaint, claiming that she failed to properly serve him within the statute of limitations. In support of his motion, he declared that he sold the home at 2517 56th Avenue NE to Shawn Maxey on October 10, 2005, stayed there as a tenant until moving out on August 1, 2007, and did not reside there on February 13, 2008. Maxey declared that Moore had not resided at 2517 56th Avenue NE since August 1, 2007, and that another tenant had lived there since that date.
Moore called this pleading a motion for summary judgment even though he is seeking to have the trial court dismiss the complaint against him for improper service.
Gatuna responded with a narrative declaration of service from Katherine Picard, the process server, stating that a male named Adrian Oliver answered the door at 2517 56th Avenue NE and told her that Moore was a resident of that address but was not home. Picard served Oliver and called him Moore's co-resident in the proof of service. Gatuna also submitted a declaration from investigator Wayne Anderson that apparently listed 2517 56th Avenue NE as Moore's address with the Washington State Department of Licensing, voter registration, and district and municipal court at the time of service.
The narrative declaration of service is not in the record on review. Gatuna might have thought that designating the "Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment with Exhibits" would have also designated all the documents relied on in Gatuna's opposition to summary judgment. But RAP 9.6(b)(2) requires that "[e]ach designation or supplement shall specify the full title of the pleading, the date filed, and, in counties where subnumbers are used, the clerk's subnumber." If the "exhibits" Gatuna is referring to include the narrative declaration of service, then Gatuna must reference that document by its subnumber to have it included in the record on appeal instead of expecting the clerk's office to know what exhibits were supposed to go with her response to Moore's "summary judgment" motion. Even after Moore's respondent's brief put Gatuna on notice that the record did not actually contain the narrative affidavit of service, she inexplicably did not supplement the designation of clerk's papers "with the filing of the party's last brief," which in this case was her reply brief, as allowed by RAP 9.6(a). Nonetheless, neither party disputes the contents of the narrative affidavit of service, and their descriptions of what it says provides a sufficient basis for this court to review whether the trial court properly struck portions of it.
Wayne Anderson's declaration is not in the record on review.
The trial court struck the second, third, and fourth sentences of the third paragraph of the narrative declaration of service as inadmissible hearsay. And the trial court dismissed the case with prejudice because there was "no evidence that the defendant resided at the address where the summons and complaint were served on February 13, 2008." Gatuna appeals, assigning error to the evidentiary ruling and the order dismissing the case.
DISCUSSION
An injured party must commence a personal injury claim within three years. When an injured party tentatively commences the action by filing a complaint only, as Gatuna did here, RCW 4.16.170 tolls the statute of limitations for 90 days. Because the statute of limitations would have otherwise run during those 90 days, Gatuna was required to complete commencement of the action by serving Moore within 90 days of filing. Plaintiffs effect substitute service by (1) leaving a copy of the summons at the defendant's house of his or her usual abode (2) with some person of suitable age and discretion (3) then resident therein. Gatuna alleges that she properly served Moore by leaving a copy of the summons at his usual abode with a person of suitable age who lived there on February 13, 2008. Moore claims that service was insufficient because 2517 56th Avenue NE was not his usual abode.
RCW 4.16.170. See Fox v. Groff, 16 Wn. App. 893, 895, 559 P.2d 1376, review denied, 88 Wn.2d 1018 (1977).
Gatuna asserts that Picard's narrative declaration of service shows that Oliver told Picard that Moore resided at 2517 56th Avenue NE, which would make that address his usual abode. She also argues that department of licensing and court records show that Moore lives at 2517 56th Avenue NE. A plaintiff may assert proper service by producing an affidavit of service that, on its face at least, shows that service was properly carried out. An affidavit of service that is regular in form is presumptively correct. The burden is then on the person attacking service to show by clear and convincing evidence that service was improper.
State ex rel. Coughlin v. Jenkins, 102 Wn. App. 60, 65, 7 P.3d 818 (2000).
Lee v. W. Processing Co., 35 Wn. App. 466, 469, 667 P.2d 638 (1983).
Miebach v. Colasurdo, 35 Wn. App. 803, 808, 670 P.2d 276 (1983), reversed in part on other grounds, 102 Wn.2d 170, 685 P.2d 1074 (1984).
Moore argues the trial court properly struck most of the operative sentences of the narrative declaration of service because they contained out-of-court statements asserted for the truth of the matter, i.e., that Oliver told Picard that Moore resided at 2517 56th Avenue NE. We review a trial court's evidentiary rulings for abuse of discretion. A trial court abuses its discretion when its decision is manifestly unreasonable or rests on untenable grounds. Gatuna argues that CR 4(g) provides a process server exception to the hearsay rule under ER 802, which provides that "[h]earsay is not admissible except as provided by these rules, by other court rules, or by statute." Marsh-McLennan Bldg., Inc. v. Clapp, supports Gatuna's position. In that case, the trial court admitted affidavits of service that contained a hearsay statement (including what a neighbor told the process server about where the defendant lived) under the reliable business records hearsay exception. This court affirmed the trial court's evidentiary ruling on alternative grounds, holding that ER 802 preserves the admission of affidavits of service prepared under CR 4(g). Accordingly, CR 4(g) is a court rule that provides for the admissibility of hearsay contained in an affidavit of service for the purposes of asserting proper service. Because Gatuna produced an affidavit of service attesting that Moore lived at 2517 56th Avenue NE, she presumptively established service. The trial court erred to the extent it found that "no evidence that the defendant resided at the address where the summons and complaint were served."
Hume v. Am. Disposal Co., 124 Wn.2d 656, 666, 880 P.2d 988 (1994), cert. denied, 513 U.S. 1112 (1995).
State v. Lord, 161 Wn.2d 276, 283-84, 165 P.3d 1251 (2007).
CR 4(g) states that "[p]roof of service shall be as follows: . . . (2) If served by any other person, his affidavit of service endorsed upon or attached to the summons."
96 Wn. App. 636, 980 P.2d 311 (1999).
Id. at 638-39.
Id. at 641.
See Jenkins, 102 Wn. App. at 65 (A plaintiff may assert proper service by producing an affidavit of service that, on its face at least, shows that service was properly carried out.).
Moore asserts that he offered clear and convincing evidence to show that service was not sufficient. Moore's declaration shows that he sold 2517 56th Avenue NE and resided at 2527 56th Avenue NE at the time of service. The current owner of 2517 56th Avenue NE confirmed Moore's story. Gatuna also submitted evidence that 2517 56th Avenue NE is listed as Moore's address with the Washington State Department of Licensing, voter registration, and district and municipal court at the time of service.
Gatuna claims that Moore's contrary evidence creates a material issue of fact, making summary judgment inappropriate. Even though Moore incorrectly titled his motion to dismiss a motion for summary judgment, the disputed issue here is jurisdictional.
In Gross v. Evert-Rosenberg, the process server attempted service at the Federal Way address listed on the police report. The process server declared that the person who answered the door indicated that the defendant lived at that house.
85 Wn. App. 539, 541, 933 P.2d 439, review denied, 133 Wn.2d 1004 (1997).
Id.
That person "filed a declaration indicating that he told the process server [the defendant] no longer lived there." The defendant still owned the Federal Way house at the time of service but leased it out and lived in Puyallup. The defendant notified the post office, the Department of Licensing, and her regular creditors of her address change but did not change her voter registration or property tax billing address. The trial court granted the defendant's motion to dismiss, and this court affirmed, holding that the process server's affidavit, voter registration, ownership, and tax records were not sufficient to show that Federal Way address was also the defendant's house of usual abode. In Vukich v. Anderson, the party attacking service "provided specific evidence" that another party was leasing his residence during the time of service, and he offered records supporting his assertion that he opened a bank account and purchased a house in another state.
Id. at 542.
Id.
Id. at 541.
Id. at 543.
97 Wn. App. 684, 690, 985 P.2d 952 (1999).
Here, Gatuna's evidence that Moore lives at 2517 56th Avenue NE is weak, similar to the weak evidence offered by the party attempting service in Gross, but she at least establishes a presumption of service. And Moore's evidence of improper service is not as convincing as the evidence of improper service in Gross, where the defendant at least had some independent corroborating evidence, in the form of notifying others of her address change and that she was residing elsewhere. Moore backs his declaration up with another declaration, but offers no tangible evidence that he actually lives somewhere else, unlike the defendant in Vukich who supported his assertions with records. Accordingly, the strength of Moore's evidence lies in the credibility of his and Maxey's assertions. We are not in a position to judge their credibility on appeal. And because the trial court erroneously determined that no evidence supported Gatuna's claim, it did not have occasion to make a finding about whether Moore's corroborated declaration rebuts a presumption of proper service. When factual determinations turn on the credibility of witnesses, a trial court should conduct a hearing with live testimony before ruling on the issue of personal jurisdiction. Accordingly, we reverse dismissal of this case and remand this matter to the trial court for an evidentiary hearing to determine whether Moore rebutted Gatuna's presumption of service.
See Woodruff v. Spence, 76 Wn. App. 207, 210, 883 P.2d 936 (1994) ("The affidavits in this case present an issue of fact which can only be resolved by determining the credibility of the witnesses. The matter must be remanded for an evidentiary hearing to resolve this fact issue."). See also 14 Karl Tegland, Washington Practice: Civil Procedure § 4.40, at 108 (1st ed. 2003).
WE CONCUR: