Opinion
30740-9-III
12-11-2012
EUGENE LAYTON, Appellant, v. MADANI KEISS AB DALLA and "JANE DOE" KEISS AB DALLA, husband and wife, and ADVANCED MOBILITY LLC, a/k/a ADVANCED MOBILITY OF PUYALLUP, LLC, Respondents.
UNPUBLISHED OPINION
Siddoway, J.
Eugene Layton's complaint for damages arising from a collision between his motorcycle and a medical transport vehicle being driven by Madani Keiss Ab Dalla was dismissed on summary judgment as time barred. At issue is whether his evidence of attempted substitute service on Mr. Madani was sufficient to create an issue of fact whether the action was timely commenced. We agree with the trial court that Mr. Layton's evidence was not sufficient to survive summary judgment. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Eugene Layton and Madani Keiss Ab Dalla were involved in a motor vehicle accident on September 26, 2007. Mr. Layton filed a negligence suit against Mr. Madani and his former employer, Advanced Mobility LLC, on September 1, 2010, less than a month before the three-year statute of limitations would expire.
A process server acting on Mr. Layton's behalf attempted to serve Mr. Madani on September 20, 2010 at apartment No. 46 in an apartment complex located at 3455 South 160th Street, SeaTac, Washington. The address was obtained from a records check for the address to which Mr. Madani's vehicle was registered. The United States Postal Service confirmed mail delivery to Mr. Madani at that address.
The process server was unable to serve Mr. Madani personally, but the process server's sworn declaration submitted in connection with summary judgment proceedings below described the following attempt at substitute service:
On September 20, 2010 at 5:48pm, I . . . attempted to serve the aforementioned documents at 3445 S 160TH ST APT 46 SEATAC, WA 98188. I received no answer at the door, but I observed a door, which was open, across the hall and several individuals were watching TV. I called out and asked if anyone knew the Defendant. The individuals in the room stated the Defendant was not there and called out a female, who came out and identified herself as Afra Sulimani. I asked if she lived at this address to which she replied, "Yes." I asked if the Defendant resides at this address to which she also replied, "Yes." I left 2 copies of the aforementioned documents with [her].Clerk's Papers (CP) at 87 (emphasis added). Mr. Madani claims he did not receive notice of the suit until either late November or early December 2010 after returning from working on a fishing boat in Alaska.
It appears that Advanced Mobility was later served, but not until more than 90 days after the filing of the complaint. Whether Mr. Layton's action against Advanced Mobility was commenced within the statute of limitations therefore depends on whether Mr. Madani was timely served. See RCW 4.16.170 (action is deemed commenced when the complaint is filed if one or more of the defendants is served within 90 days).
In answering the complaint, Mr. Madani asserted insufficient service of process, among other defenses, and the defendants moved for summary judgment dismissal on that basis. In support of the motion, they submitted an affidavit from Mr. Madani. Having become aware that Mr. Layton's proof of service stated that the summons and complaint had been delivered to "Afra Sulimani[, ] co-resident, " at apartment 46 in the SeaTac apartment complex (CP at 43), Mr. Madani's affidavit addressed the purported service. He testified that while he had lived in several different apartments within the SeaTac apartment complex over the prior few years, he never lived in apartment 46. He stated that Ms. Sulimani was one of his neighbors in the complex and had agreed to receive his mail as a favor to him while he was working in Alaska. He denied having authorized her to receive legal documents on his behalf.
In resisting the motion for summary judgment, Mr. Layton filed a new, narrative declaration from the process server. The new declaration recounted the process server's version of his delivery of the summons and complaint to Ms. Sulimani set forth above, including Ms. Sulimani's alleged representation that Mr. Madani lived at apartment 46.
In reply, Mr. Madani submitted an affidavit from Ms. Sulimani, who testified that she had lived in apartment 46 for the prior two years and that Mr. Madani never resided with her. She affirmed Mr. Madani's assertion that she had merely agreed to accept Mr. Madani's mail while he was out of town. She contested the process server's version of events on the day of his attempted service, stating that she told the process server that Mr. Madani did not live with her and that apartment 46 was not his residence.
The trial court granted the defendants' motion and dismissed the complaint. Mr. Layton's motion for reconsideration was denied, and this appeal timely followed.
ANALYSIS
"Proper service of the summons and complaint is a prerequisite to the court obtaining jurisdiction over a party, and a judgment entered without such jurisdiction is void." Woodruff v. Spence, 76 Wn.App. 207, 209, 883 P.2d 936 (1994). RCW 4.28.080(15) sets forth the requirements for service and permits substitute service upon an individual defendant "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."
Mr. Layton argues that the trial court erred by granting summary judgment because a genuine issue of fact exists as to whether Mr. Madani received proper substitute service at his "usual place of abode" when the process server handed copies of the summons and complaint to Ms. Sulimani at apartment 46.
We review an order granting summary judgment de novo. Tiger Oil Corp. v. Yakima County, 158 Wn.App. 553, 561, 242 P.3d 936 (2010). Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. CR 56(c). "A genuine issue of material fact exists where reasonable minds could differ on the facts controlling the outcome of the litigation." Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). Whether a defendant's ties to a particular address are sufficient to qualify that residence as a "usual place of abode" is a question of law. Sheldon v. Fettig, 77 Wn.App. 775, 779, 893 P.2d 1136 (1995), aff'd, 129 Wn.2d 601, 919 P.3d 1209 (1996).
We consider all facts and reasonable inferences from them in the light most favorable to the nonmoving party, and do not weigh evidence or make witness credibility determinations. Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 693, 169 P.3d 14 (2007); Barker v. Advanced Silicon Materials, L.L.C., 131 Wn.App. 616, 624, 128 P.3d 633 (2006). Summary judgment is appropriate only if reasonable persons could reach but one conclusion from all the evidence. Barker, 131 Wn.App. at 623.
In addressing the burden of proof where the sufficiency of service of process is contested, Mr. Layton cites Goettemoeller v. Twist for the proposition that "[a]n affidavit of service is presumptively correct, and the party challenging the service of process bears the burden of showing by clear and convincing evidence that the service was improper." 161 Wn.App. 103, 107, 253 P.3d 405 (2011). Where the issue of insufficiency of service of process is raised in the context of a prejudgment motion for summary judgment, however, we have declined to follow cases such as Goettemoeller that apply this heightened burden and presumption. Instead, we review the dismissal as we would any other summary judgment dismissal based on an affirmative defense. Farmer v. Davis, 161 Wn.App. 420, 430 n.2, 250 P.3d 138, review denied, 172 Wn.2d 1019 (2011). In accordance with Farmer, Mr. Layton bore the burden of proof of establishing valid service, and the usual summary judgment standards apply. Id. at 428-30. We review whether Mr. Layton raised a genuine issue of material fact as to the sufficiency of service when viewing the evidence in the light most favorable to him.
While the term "house of usual abode" has not been defined by statute and has been given no hard and fast definition by Washington courts, our Supreme Court has stated that a residence may be considered a defendant's house of usual abode if it is "a center of domestic activity where it would be most likely that [the] defendant would promptly receive notice if the summons were left there." Sheldon, 129 Wn.2d at 612. The term is to be liberally construed to effectuate service and interpreted with the end purpose of the statute in mind, namely "to provide a means to serve defendants in a fashion reasonably calculated to accomplish notice." Id. at 610.
The parties' principal dispute is over whether the admissible evidence bearing on the motion for summary judgment is limited to the facts that Mr. Madani had lived in the apartment complex (although not in apartment 46) and had used Ms. Sulimani's address as his mailing and vehicle registration address while he was working in Alaska, or whether it also includes Ms. Sulimani's disputed statement that Mr. Madani resided in apartment 46.
Mr. Madani argued below that the process server's allegations about Ms. Sulimani's claimed admissions were irrelevant and failed to raise a genuine issue of fact, citing this court's decision in Gerean v. Martin-Joven, 108 Wn.App. 963, 33 P.3d 427 (2001). In Gerean, a process server left a summons and complaint with the defendant's father at the father's home, at which the defendant—an adult daughter—no longer lived. Although the record is not clear as to the process server's precise version of events in that case, it is clear that he claimed to have been led by the father to believe that the defendant did reside in the home. This court rejected the plaintiff's claim that the defendant could thereby be estopped to deny that the father's home was her usual place of abode, stating,
[T]he court found that any misrepresentation, even if we accept the process server's version of the attempted service, was not by the defendant, but by [her father]. And [he] was not a party to this suit. The court correctly concluded that Ms. Martin-Joven was not estopped from acting inconsistently with a statement by a third party. Thus, any disputed fact about who said what to whom at [the father's home] is not material on this issue either.Id. at 974.
Had Mr. Layton obtained an affidavit from Ms. Sulimani attesting that Mr. Madani resided in apartment 46 at the time of service, it would have raised a genuine issue of fact as to Mr. Madani's usual place of abode. But the process server's testimony as to Ms. Sulimani's purported statements is hearsay. It is, at best, extrinsic evidence of a prior inconsistent statement by Ms. Sulimani that could be used to impeach her credibility, but not to establish that the facts contained in her alleged statement to the process server are substantively true. State v. Garland, 169 Wn.App. 869, 885, 282 P.3d 1137 (2012). As such, the process server's testimony as to Ms. Sulimani's statements is not evidence on which the trial court could rely, or on which we will rely in determining whether Mr. Layton presented evidence sufficient to avoid summary judgment. On summary judgment, the court is allowed to consider only competent evidence. Davis v. W. One Automotive Grp., 140 Wn.App. 449, 455 n.1, 166 P.3d 807 (2007) (citing King County Fire Prot. Dist. No. 16 v. Housing Auth., 123 Wn.2d 819, 826, 872 P.2d 516 (1994)).
Mr. Layton cites to dicta in this court's decision in Romjue v. Fairchild, 60 Wn.App. 278, 280, 282, 803 P.2d 57 (1991) that a process server's affidavit asserting that the defendant's mother, on whom she served the summons and complaint, stated that her emancipated son "'is not here right now, '" "raises an inference that service was proper." This court also hazarded in Romjue that "courts in other states hold the parental home of an unmarried college student may continue to be a place where substitute service may be made in certain circumstances." Id. at 282. Most importantly, however, the decision states that "[s]ince we have concluded the dismissal should be reversed based on waiver, we do not reach the issue whether there are unresolved material issues of fact regarding [the defendant's] 'usual place of abode.'" Id. (emphasis added). Romjue is explicitly not precedent on the issue presented here.
Mr. Madani did not identify hearsay as the basis for his objection to the process server's testimony to Ms. Sulimani's disputed statements. But he clearly did object. In light of Mr. Layton's alternative argument that the statute of limitations was tolled on account of concealment, his purpose for offering the process server's testimony about Ms. Sulimani's alleged statements was not clear. And after Mr. Madani objected to the immateriality of that evidence based on Gerean, Mr. Layton did not distinguish Gerean or argue, either in his reply or in his motion for reconsideration, that he was offering the testimony as to Ms. Sulimani's statements for their truth. If he had, it would have highlighted the hearsay character of the evidence.
We have refused to consider improper evidence in reviewing an order on summary judgment notwithstanding the opposing party's failure to object. Davis, 140 Wn.App. at 455 n.1. Here, Mr. Madani did object, even if his objection presumed that the evidence was being offered for a purpose other than its truth. Because it was abundantly clear from Mr. Madani's briefing in the trial court that he assumed the evidence was not being offered for its truth, and Mr. Layton never disabused either him or the court of any misunderstanding, it is appropriate for us to refuse to consider the process server's declaration for an improper hearsay purpose.
Mr. Layton is left, then, with the evidence that Mr. Madani was working on a fishing boat in Alaska at the time substitute service was attempted, and was using Ms. Sulimani's address as a mailing address and to register a vehicle. Even viewed liberally, that evidence is insufficient to establish apartment 46 as any sort of usual place of abode or center of Mr. Madani's domestic activity.
The trial court properly granted the defendants' motion for summary judgment dismissal.
Affirmed.
A majority of the panel has determined that 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.
WE CONCUR: Korsmo, C.J., Kulik, J.