Opinion
Nos. 35993-6-II; 35995-2-II.
May 20, 2008.
Appeals from a judgment of the Superior Court for Grays Harbor County, No. 05-2-00450-5, Gordon Godfrey, J., entered January 22, 2007.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Armstrong, J.
The trial court consolidated two cases for a hearing to determine whether (1) Homer and Donna Wilson and (2) Boulevard Development, Inc., properly served Curt Ellison in their respective cases. Ellison appeals the trial court's determination that the Wilsons properly served him in a default action against him. In addition, Ellison appeals the trial court's sanction of default judgment against him in the Boulevard action after he missed a scheduled deposition. We hold that the service was proper and that substantial evidence supported the trial court's decision and that the attorney fee award was proper based on Ellison's bad faith. We affirm. We also grant attorney fees to the Wilsons based on the frivolous appeal under RAP 18.9.
But, we hold that the trial court did not properly address on the record the alternatives for the discovery violation when it granted a default judgment against Ellison in favor of Boulevard. Thus, we vacate that default judgment and remand for reconsideration of the discovery violation.
FACTS
This appeal involves two related actions that the Grays Harbor County Superior Court consolidated. The issue on appeal in both cases involves Ellison's service of process challenge. The first action involved the case of Wilson v. Phlegar, et al., Grays Harbor County cause no. 05-2-00450-5. Phlegar delivered a promissory note to the Wilsons and contemporaneously delivered a Deed of Trust for property located in Grays Harbor County to secure payment of the note. In 2003, the city of Ocean Shores (City) commenced a foreclosure action for assessment liens against several properties, including the Phlegar property. Ellison bought 10 lots, including the property, in which the Wilsons held an interest, at the auction. The City did not notify the Wilsons of the sale.
When Phlegar failed to pay off the note, the Wilsons exercised the Deed of Trust to foreclose on said property. The Wilsons then learned that the City had already sold the property to Ellison. The Wilsons attempted to make Ellison a party in the foreclosure action. After Ellison failed to respond to the service at issue in this case, the trial court granted an order of default against him on April 12, 2006. On May 3, 2006, Ellison's attorney appeared, and, on May 9, 2006, filed a motion to set aside the order of default. Ellison argued that the Wilsons failed to properly serve him and that even if service was valid, he had a meritorious defense to the claims.
The Boulevard action arose after Boulevard acquired redemption rights to several of the properties Ellison purchased at the city of Ocean Shores foreclosure sale. When Boulevard attempted to redeem those properties, Ellison refused. Boulevard sued Ellison, alleging that Ellison tortiously interfered with Boulevard's agreements. On May 3, 2006, Ellison appeared through his attorney, reserving the defenses of invalid service and lack of jurisdiction. Boulevard properly noted the deposition of Ellison for July 14, 2006, and subsequently moved the date to August 10, 2006. When Ellison failed to appear at the deposition, Boulevard filed a motion for default and a motion for sanctions. Ellison filed a motion to dismiss based on faulty service of process.
Service of Process
Patterson's Testimony
Coincidentally, both plaintiffs used the same process server, J.L. Patterson, of Wenatchee, Washington. Patterson conducted an investigation and determined that Ellison's residence was at 1724 10th Place NE, in East Wenatchee (East Wenatchee address). Patterson learned that title to the house was in Ellison's name and that Ellison owned several vehicles that were often present at the house, including a green Lexus.
On March 21, 2006, Patterson observed that the Lexus was gone from the home and then back again. Patterson knocked on the door around 5:00 pm that afternoon, but there was no response. Patterson left his business card on the driver's window of the Lexus, with a notation asking Ellison to call him.
Beyond this point, all testimony and documentation conflicts regarding the subsequent contact between Patterson and Ellison's nephews. Patterson provided a return of service form, a declaration, and testimony regarding the service. According to Patterson, Jeremy Ellison called him at around 8:35 PM, asking about Patterson's business card. Patterson asked Jeremy whether he lived at the East Wenatchee address and he answered affirmatively. According to both Patterson's testimony and his return of service form, Jeremy told him that Ellison was his uncle and that Jeremy and his brother Josh lived at the East Wenatchee address with Ellison. Jeremy told Patterson that Ellison was in the Tri-Cities for a couple of days helping a relative move. He also told Patterson that Ellison owned and drove the green Lexus but that Ellison allowed him to drive it while he was out of town for a few days. During the phone call, Patterson asked Jeremy at least three times whether he lived there with Ellison, and each time Jeremy answered affirmatively.
Following the phone call from Jeremy, Patterson drove to the East Wenatchee address where he spoke with both nephews. Patterson asked both nephews whether they lived at the East Wenatchee address with their uncle and both nephews said that they did. Jeremy told Patterson that he was 17 years old and that Josh was 16 years old. Based on the nephews' statements, Patterson served Jeremy with summons and complaints for both the Wilson and Boulevard actions. Patterson explained that there were two separate documents on two separate issues and that Jeremy was receiving service as an imposed service for his uncle.
Before leaving the East Wenatchee address, Patterson asked Jeremy if there was a way to contact Ellison and Jeremy gave Patterson the last seven digits of a cell phone number, but he did not provide the area code. The following day, March 22, 2006, Ellison himself called Patterson, claiming that he did not live at the East Wenatchee address. Patterson recognized the cell phone number as identical to the number that Jeremy gave him the previous evening. When Patterson asked why his nephews would say otherwise, Ellison became abusive and insulting and then hung up the phone.
Craig's Testimony
Ellison's brother Craig testified that his son Jeremy called him to tell him about the papers he received from Patterson. Craig testified that he asked Jeremy why he accepted service for Ellison when Ellison did not live there and that Jeremy responded that he had not. Instead, Craig claimed that Jeremy told him that Patterson merely asked if he was related to Ellison and when Jeremy indicated that he was, Patterson handed the papers to him and said, "[Y]ou have been served." 1 RP at 106.
Craig testified that when he received the papers, he took them over to an attorney who was the father of one his son's friends. He claimed that the attorney told him to inform both Wilson and Boulevard that service was not proper and to have Jeremy write out a statement that could then be notarized and sent to both attorneys. Craig then claimed that he sent the summons and complaints back to the respective parties without sending a copy of the documents to Ellison. In direct conflict with Patterson's testimony that Ellison called him the day after the service, Craig stated that it took him two or three days after speaking with the attorney to contact Ellison about what was going on. Jeremy's Declaration
Craig testified that he instructed Jeremy to tell him, in his own words, exactly what happened regarding the service. Jeremy's March 27, 2006, handwritten statement provided:
I, Jeremiah Daniel Ellison am a minor and reside with my father, Craig Daniel Ellison at 1724 10th PL NE E. Wenatchee, WA 98802. I was "served" for Curt Ellison who does not reside at 1724 10th PL NE E. Wenatchee, WA 98802.
I haven't seen Curt Ellison for months and don't know where he is. Please serve Curt Ellison and not me for him as, (1) I am a minor (2) I don't live with him.
I swear the facts are true.
This will be sent certified to the court and to the attorneys referenced. [Signed] Jeremy Ellison.
CP at 28. Craig admits that he wrote the statement for Jeremy but argues that he transcribed only what Jeremy told him had occurred. He then had the document notarized and sent a copy to both the Wilsons and Boulevard.
Ellison's Testimony
Even though he never moved out of the East Wenatchee house, Ellison contended that at the time of service, he did not live at the East Wenatchee address, which he owned, and instead, was splitting time between Ocean Shores and Kennewick, Washington. He admitted that he lived at the East Wenatchee address before September 2005 and again beginning in June 2006. He argued that he moved from the East Wenatchee address in September 2005 to enroll his delinquent niece in school and that during that time, they lived in another Ocean Shores residence that Ellison owned. When his niece had problems at the school in Ocean Shores, he withdrew her and placed her in a private boarding school in Raymond, Washington, some time in early 2006.
Ellison claimed that he went to the Tri-Cities in February 2006, to help his father move into and fix a home that he purchased for him there. Ellison contended that, although he stayed in Kennewick for long periods, he returned regularly to visit his niece in Ocean Shores.
Ellison argued that Craig lived at the East Wenatchee address with Jeremy and Josh and that Craig paid rent to Ellison for the residence.
But Ellison acknowledged that some of the utilities remained in his name and that some of his business and personal mail went either to the East Wenatchee address or to a post office box in Wenatchee. He contended, however, that he insured his Ocean Shores residence as his primary residence. Ellison claimed that he visited his family in East Wenatchee "at the most once a month for a day or so at a time." Br. of Appellant at 8. He claimed that, other than these few brief visits, he did not return to live at the East Wenatchee address until June 2006, nearly three months after Patterson served his nephew.
Procedural History
The trial court held a consolidated hearing on October 11 and 12, 2006. It denied Ellison's motion to set aside the default order in the Wilson matter and it granted Boulevard's motion for entry of a default judgment against Ellison. The primary basis for the trial court's decisions was that it explicitly found that the testimony of Ellison, Craig, Jeremy, Josh, and Ellison's father lacked credibility and that their actions collectively appeared to be an attempt to perpetrate a fraud on the trial court. The trial court subsequently denied Ellison's motion for a new hearing or for reconsideration. It then awarded attorney fees to the Wilsons.
ANALYSIS I. Substitute Service
Ellison argues that we must set aside the default orders against him in both the Wilson and Boulevard actions because neither party properly served him, and thus, the trial court lacked jurisdiction over him. Substitute service is effective when a copy of the summons is left at the defendant's house of usual abode, with a person of suitable age and discretion, who resides therein. RCW 4.28.080(15); Sheldon v. Fettig, 129 Wn.2d 601, 607, 919 P.2d 1209 (1996). We liberally construe the phrase "usual abode" and under certain circumstances, a defendant can have more than one house of usual abode. Sheldon, 129 Wn.2d at 609, 611. "A place of usual abode, however, must be 'a place where the defendant's domestic activity is centered and where service left with a family member is reasonably calculated to come to the defendant's attention within the statutory period for making an appearance.'" Blankenship v. Kaldor, 114 Wn. App. 312, 316, 57 P.3d 295 (2002), review denied, 149 Wn.2d 1021 (2003) (quoting Gross v. Evert-Rosenberg, 85 Wn. App. 539, 542, 933 P.2d 439, review denied, 133 Wn.2d 1004 (1997)). Whether a residence qualifies as a house of usual abode is a question of law that we review de novo. Blankenship, 114 Wn. App. at 316. Actual notice does not constitute sufficient service. Gerean v. Martin-Joven, 108 Wn. App. 963, 972, 33 P.3d 427 (2001), review denied, 146 Wn.2d 1013 (2002).
Here, all parties stipulated that Jeremy was of suitable age and discretion to receive the service and that Jeremy lived at the East Wenatchee address, and thus, the only question before us is whether the East Wenatchee address was Ellison's house of usual abode. We note that Ellison does not claim the defense of excusable neglect on appeal.
"When a defendant moves to dismiss based upon insufficient service of process, 'the plaintiff has the initial burden making a prima facie showing of proper service.'" Witt v. Port of Olympia, 126 Wn. App. 752, 757, 109 P.3d 489 (2005) (quoting 14 Karl B. Tegland, Washington Practice., Civil Procedure § 4.40, at 108 (2004)). "A plaintiff may make this showing by producing an affidavit of service that on its face shows that service was properly carried out." Witt, 126 Wn. App. at 757. If the plaintiff makes this showing, the burden then shifts to the defendant to prove by clear and convincing evidence that service was improper. Witt, 126 Wn. App. at 757.
Ellison admits that both the Wilsons and Boulevard satisfied their initial burden by providing Patterson's affidavit of service. He then contends that he proved by clear and convincing evidence that Patterson did not properly serve him.
Ellison contends that Salts v. Estes, 133 Wn.2d 160, 943 P.2d 275 (1997) (housesitter not a resident), altered the liberal construction rule found in Sheldon. But Salts is not relevant here because Jeremy clearly resided at the house. Further, Salts does not require the strict approach to RCW 4.28.080(15) that Ellison claims it does; rather, it requires that we not stretch the meaning of the three standards beyond their plain boundaries. Estes, 133 Wn.2d at 170.
Ellison next argues that his case is factually similar to Vukich v. Anderson, 97 Wn. App. 684, 687, 985 P.2d 952 (1999), and Gross, 85 Wn. App. 539. But these cases are inapposite because they rest on a finding that the defendant did not reside at the served residence.
Nevertheless, Ellison contends that the East Wenatchee home was not the center of his domestic activity, and, accordingly, not his house of usual abode. But Ellison, Craig, Jeremy, Josh, and Ellison's father provided all of the testimony supporting his claim that the East Wenatchee home was not his house of usual abode. As mentioned above, the primary basis for the trial court's decision was that it explicitly found that the testimony of Ellison, Craig, Jeremy, Josh, and Ellison's father lacked credibility.
Specifically, the trial court stated:
I can tell you, for two days as we have sat in here, my intelligence has been insulted virtually from the moment I walked in this door until now. And in my career as a judge, I don't think that I have had anyone come into this courtroom as blatant as what I have observed in this courtroom in this last two days, of virtually perpetrating or attempting to perpetrate a fraud on a court.
2 RP at 255. The trial court then listed cogent reasons for its determination. The trial court again referenced Ellison and his family's credibility at the hearing on the motion for reconsideration.
We accord the fact finder all deference on credibility determinations and this court will not disturb them on appeal. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002), review denied, 149 Wn.2d 1007 (2003). To the extent that the trial court found that Ellison and his family lied, we do not disturb the trial court's findings.
Regardless of the credibility issues, we must still determine whether Ellison showed by clear and convincing evidence, other than the testimony of his family, that the East Wenatchee house was not his house of usual abode. Witt, 126 Wn. App. at 757. By way of physical or substantive evidence, Ellison showed that he gave his Ocean Shores address to the Kennewick Irrigation District, the public utilities, and the Department of Licensing. He insured his Ocean Shores home as his primary residence. In contrast, he admits that he received some mail in East Wenatchee and that the utilities for the East Wenatchee address remained in his name while he was in Ocean Shores, but he contends that these alone are insufficient to establish his house of usual abode.
But Ellison's own testimony supports that the East Wenatchee address was at least one of his houses of usual abode. Ellison testified that when he left Wenatchee in September 2005, he had every intention to return as soon as the following spring.
Q Ocean Shores, you were in Ocean Shores, you were there for your niece, then when your business was — when your the [sic] niece was done you went back to [E]ast Wenatchee; is that right?
. . . .
A Um, I don't really understand the question too well but I can I think get the gist of what he is trying to get at. My whole goal was to spend my time here in Ocean Shores as long as my niece was in this area and then I was not planning on being here anymore.
Q Your intention was to go back to East Wenatchee?
A That is exactly right, and that was around the summer time, or when my niece was out of school.
1 RP at 53.
According to Ellison, at the time of service, he was "splitting his time between Ocean Shores and Kennewick in order to assist his father." Br. of Appellant at 9. Ellison acknowledged that he had several residences at a time. When asked to explain why he insured his Ocean Shores home as his primary residence months before he allegedly moved there, he explained, "Well, I lived at both places up to that time. . . . Well, I'm all over the state of Washington. . . . I was living in both places." 1 RP at 69-70. Finally, Ellison admitted that he did not move out of the East Wenatchee house when he left for Ocean Shores because both houses were furnished.
A person can have more than one house of usual abode. Sheldon, 129 Wn.2d at 609, 612. Based on the trial court's determination that Ellison and his family lacked credibility, the fact that Ellison never moved out of the East Wenatchee address, and evidence that, although he planned to be away for a few months, Ellison always intended to return to the East Wenatchee address, we hold that Ellison failed to establish that service at the East Wenatchee address was improper.
II. Default Judgment as a Sanction
Ellison contends that we must set aside the trial court's entry of default in the Boulevard action because it was an inappropriate sanction. He argues that the only motion for sanctions in this case was Boulevard's CR 37(d) motion, which it based on Ellison's failure to appear at the noted deposition. He urges us not to consider any of his other conduct in evaluating the sanction. We do not accept this invitation.
Boulevard contends that the trial court based its decision not on its motion for default but, 3 rather, on the fact that the trial court believed Ellison was attempting to perpetrate a fraud on the trial court. It appears that the trial court actually relied on both the failure to appear at the deposition and the attempted perpetration of a fraud on the court in making its decision.
As to the failure to appear at a deposition, we review a discovery sanction for an abuse of discretion. Casper v. Esteb Enters., Inc., 119 Wn. App. 759, 768, 82 P.3d 1223 (2004). A trial court abuses its discretion in sanctioning a party if that discretion is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Casper, 119 Wn. App. at 768. If a trial court imposes one of the harsher remedies under CR 37(b), the record must show that the trial court explicitly considered whether (1) a lesser sanction would probably have sufficed and (2) whether the trial court found that the party's refusal to obey a discovery order was willful or deliberate and substantially prejudiced the opponent's ability to prepare for trial. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). A discovery rule violation is willful if done without reasonable excuse. Smith v. Behr Process Corp., 113 Wn. App. 306, 327, 54 P.3d 665 (2002).
But Boulevard requests that we address the sanctions here based on Ellison's perpetration of a fraud rather than relying on the discovery sanction standard. Although Boulevard acknowledges that no Washington courts have done this, Woodhead v. Discount Waterbeds, Inc., 78 Wn. App. 125, 129, 131, 896 P.2d 66 (1995), review denied, 128 Wn.2d 1008 (1996), a case involving dismissal under CR 41(b), is analogous. But the instant case is unlike Woodhead because the trial court there acknowledged that the parties had argued, and the trial court had before it, requests for lesser sanctions. Woodhead, 78 Wn. App. at 132. Boulevard's motion requested only an order of default, without discussing any lesser sanctions, so Woodhead is not dispositive.
Thus, we are left with the fact that the trial court failed to consider any lesser sanctions. Regardless of how certain the trial court was about imposing the harsh sanction, no discussion of lesser sanctions appears in the record. Even when Ellison attempted to argue the severity of the sanctions during his motion for reconsideration, the trial court did not consider any lesser sanctions sufficient for us to review. We must reverse the order of default against Boulevard based on the trial court's failure to satisfy CR 37(b). We remand the Boulevard action for the trial court to reconsider its sanctions and address whether the refusal to obey the discovery order was willful and substantially prejudiced Boulevard's ability to prepare for trial.
III. Substantial Evidence
As an initial matter, Ellison argues that the trial court lacked authority to enter findings of fact because it never had proper jurisdiction over him. We disregard this claim because the Wilsons and Boulevard properly served Ellison at one of his houses of usual abode.
Ellison next argues that substantial evidence does not support 17 of the trial court's findings of fact. The majority of Ellison's claims merely contend that the trial court should have believed his witnesses' testimony. Again, we do not disturb credibility determinations on appeal. Burrill, 113 Wn. App. at 868. We do not list all of his credibility arguments specifically, but we do address those claims dealing with issues other than credibility. We include the trial court's 5 credibility determination contained in finding of fact XXXV to show the trial court's extensive determination. 6
Finding of fact XXXV stated:
This court specifically finds that CURT ELLISON, Craig Ellison, Jeremy Ellison and Josh Ellison have been untruthful and have attempted to perpetuate a fraud in this court for, as to each of them, for some or all of the following reasons, among others;
1. They were deceitful as to what they told this court about what they said to the process server at the time of service.
2. They were deceitful in testifying that CURT ELLISON was not informed of the lawsuits.
3. They were deceitful in testifying they did not know where CURT ELLISON was at the time of service.
4. They were deceitful in contradicting each other as to the living conditions in the home in East Wenatchee as it pertains to CURT ELLISON.
5. They were deceitful in preparing and causing to be prepared, a declaration of Jeremy Ellison attempting to disavow what he told Mr. Patterson.
6. They were deceitful in indicating they consulted with an attorney and testifying they were told all they needed to do was submit a declaration to the attorneys and the court.
7. They were deceitful in suggesting it was counsel's responsibility to bring Jeremy Ellison's declaration to the court's attention after they told counsel they had forwarded it to the court.
8. They were deceitful in testifying the declaration was done immediately the next day after process was served when, in fact, it was done six days later.
9. They were deceitful in attempting to conceal the extent of CURT ELLISON's business acumen which this court believes to be extensive.
10. They were deceitful in failing to bring forth numerous records they could have, including CURT ELLISON's driver's license, numerous phone records, and numerous mailings which this court believes they did not as the records would have shown their testimony to be false in many respects.
11. They were deceitful in trying to show CURT ELLISON got his mail in Ocean Shores when he knew he was having mail sent there forwarded to East Wenatchee. Further, Craig Ellison acknowledged he never picked up his brother's personal mail but that CURT ELLISON picked up his own personal mail in East Wenatchee, thereby further showing their deceitfulness in claiming mail was received at Ocean Shores.
CP at 58-59.
We review a trial court's findings of fact for substantial evidence. In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 (2004). Substantial evidence exists where there is sufficient evidence in the record "to persuade a rational, fair-minded person of the truth of the finding." Jones, 152 Wn.2d at 8. We hold that substantial evidence supported the findings that Ellison properly contested (XV, XXIII, XXX, XXXIV).
Ellison inadequately addressed findings of fact I through VIII. RAP 10.3 requires an appellant to present argument to the reviewing court as to why specific findings of fact are in error and to support those arguments with citation to relevant portions of the record. Ellison provides no argument or citation to the record to support these claims. As such, we do not review these claims and hold that these specific findings of fact are verities. See In re Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 310-11, 962 P.2d 813 (1998) (declining to address insufficiently briefed challenges).
IV. Hearsay
Ellison next contends that the trial court erred by considering Patterson's inadmissible hearsay. Specifically, he challenges Patterson's testimony regarding his interaction with Jeremy and Josh Ellison, statements in Patterson's affidavit of process, and procedural errors with Patterson's declaration of service.
We review whether a statement was inadmissible hearsay de novo. State v. Edwards, 131 Wn. App. 611, 614, 128 P.3d 631 (2006). "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). Such hearsay is inadmissible unless it fits within an exception. ER 802.
Ellison first contends that the trial court allowed inadmissible hearsay when it permitted Patterson to testify about his conversations with Jeremy and Josh. He argues that all of Jeremy and Josh's statements, both by phone and in person, that Patterson testified about were clearly hearsay because the Wilsons and Boulevard offered them to prove the truth of the matter asserted — that Ellison lived there.
But the record shows that the Wilsons called Patterson to testify concerning Jeremy's declaration, specifically to address the inconsistencies between his declaration and Patterson's return of service, and to introduce Patterson's return of service. Patterson testified that Jeremy told him on the phone that Ellison lived with him at the East Wenatchee address, and that when he arrived at the East Wenatchee address, Jeremy and Josh both told him that Ellison lived there. After Patterson viewed Jeremy's declaration and answered a few questions, the trial court then admitted exhibit 11, Patterson's return of service.
The Wilsons first contend that Patterson's testimony was not hearsay because it addressed a prior inconsistent statement. But prior inconsistent statements, under ER 613, involve examining a witness about a statement that witness made. The Wilsons next argue that Patterson's statement was admissible under ER 607, but ER 607 merely provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." Finally, the Wilsons argue that Patterson's testimony was not hearsay based on ER 801(d)(1), which provides:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if — (1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (i) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (ii) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (iii) one of identification of a person made after perceiving the person.
ER 801(d)(1).
It is questionable whether ER 801(d)(1) would apply here because at the time that the Wilsons called Patterson to testify, Jeremy had not yet testified. Neither was his declaration given under oath subject to penalty of perjury at trial. ER 801(d)(1)(i).
The only mention of Jeremy's declaration before Patterson testified was when Craig testified that he instructed Jeremy to tell him what happened involving the service so that he could write it down for Jeremy. Craig testified that Jeremy had the declaration notarized and that they sent copies to counsel for both parties. Craig did not discuss the substance of Jeremy's declaration. Ellison's counsel then offered exhibit 24, a copy of Jeremy's declaration, into evidence. Wilson's counsel cross-examined Craig regarding some of the language found in Jeremy's declaration that could be construed as too technical for a 17-year-old, but he did not discuss the remaining substance.
Boulevard contends that proof of service, in particular, the "house of his or her usual abode" and "then resident therein" elements require hearsay. Br. of Resp't Boulevard at 9-10. It then lists multiple cases in which Washington courts have considered process servers' testimony. First, Boulevard cites Salts, 133 Wn.2d at 164, but nothing in Salts supports this contention. Next, it cites Blankenship, 114 Wn. App. at 314-15, which indicates that the court considered some information about the conversation that the process server had with the party that he served. It is unclear, however, whether this information came from testimony or from the process server's return of service. Blankenship, 114 Wn. App. at 314-15. Next, it cites Vukich, 97 Wn. App. at 686, where a process server apparently testified that his usual process would not have been to serve the party if they told him that the targeted party no longer lived there.
Based on the preceding list of cases, Boulevard proposes that no Washington cases limit the hearsay exception for proof of service. Accordingly, all information necessary to establish service, including testimony of the process server, would qualify for the Marsh-McLennan Building, Inc. v. Clapp, 96 Wn. App. 636, 641, 980 P.2d 311 (1999), return of service hearsay exception. We do not interpret this issue so broadly.
We find, however, that even if Patterson's testimony constituted hearsay, the admission was harmless. A nonconstitutional error is cause for reversal only if this court concludes that, within reasonable probabilities, the outcome of the trial would have been materially different had the error not occurred. State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). Here, ample evidence supported the trial court's decision, including Patterson's return of service. Further, we note that Patterson testified only to what he had already written in his return of service. Ellison cross-examined Patterson and the nephews both testified concerning their contact and whether Ellison resided at the home. Patterson's testimony would have been relevant in any event.
Ellison next contends that Patterson's return of service contained inadmissible hearsay. CR 4(g)(2) provides that proof of service may be by the affidavit of the process server. Such proofs by affidavit and prepared under CR 4(g) qualify as hearsay exceptions. Clapp, 96 Wn. App. at 641. CR 4(g)(7) provides that the return, acceptance, admission, or affidavit must state the time, place, and manner of service. Ellison argues that any information in a return of service that exceeds time, place, or manner is excludable as hearsay. But Ellison provides no authority supporting such a limitation on proof of service. As such, we do not address this argument. Milligan v. Thompson, 110 Wn. App. 628, 635, 42 P.3d 418 (2002). Further, any error was harmless because the witnesses took the stand and testified regarding the substance of the alleged, objectionable material. Cunningham, 93 Wn.2d at 831.
Finally, Ellison contends that Patterson's declaration does not meet the requirements of GR 13, which allows a party to substitute a declaration for an affidavit if the declaration contains a certification that the statements are made under penalty of perjury and includes both the date and place of signing. Here, Ellison contends, the declaration was not notarized and did not show the date that Patterson signed it. But Ellison did not raise this issue before the trial court and, as such, cannot raise it now. RAP 2.5(a); State v. Davis, 141 Wn.2d 798, 850, 10 P.3d 977 (2000). If Ellison raised this objection below, Patterson could have amended the proof of service under CR 4(h). The trial court did not err.
V. Motion for Reconsideration
Ellison contends the trial court should have granted its motion for reconsideration because the additional evidence it provided supported each of its claims. CR 59(a)(4) provides that the trial court can grant a motion for reconsideration if the party provides "[n]ewly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial." The Wilsons objected to the new evidence, arguing that Ellison moved to vacate the default judgment on May 2, 2006, while the trial court held the initial hearing on December 18, 2006, over seven months later. Ellison argues that the "evidence presented here was not available at the time of the original hearing because [he] had not collected it." Br. of Appellant at 30. Ellison provides no valid argument that he could not with reasonable diligence have discovered the additional evidence before the hearing. We hold that the trial court correctly denied Ellison's motion for reconsideration.
VI. Attorney Fees for the Wilsons
Ellison argues that we must reverse the trial court's award of attorney fees in favor of the Wilsons because, in general, Washington courts award attorney fees only when authorized by contract, statute, or recognized ground in equity. Pierce County v. State, 159 Wn.2d 16, 50, 148 P.3d 1002 (2006). Here, the Wilsons requested attorney fees on equitable grounds, citing Ellison's bad faith.
We review the reasonableness of an award of attorney fees for an abuse of discretion. Rettkowski v. Dep't of Ecology, 128 Wn.2d 508, 519, 910 P.2d 462 (1996). The trial court 2 abuses its discretion only when it exercises its discretion on manifestly unreasonable grounds. Rettkowski, 128 Wn.2d at 519.
The Wilsons sought attorney fees under the bad faith analysis in Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918, 927, 982 P.2d 131 (1999), review denied, 140 Wn.2d 1010 (2000), as well as CR 11, and RCW 4.84.185. Bad faith litigation can warrant the equitable award of attorney fees. In re Recall of Pearsall-Stipek, 136 Wn.2d 255, 267 n. 6, 961 P.2d 343 (1998). The Rogerson court cited three types of bad faith, based on the federal corollaries: (1) prelitigation misconduct, (2) procedural bad faith, and (3) substantive bad faith. Rogerson Hiller Corp., 96 Wn. App. at 927.
The Wilsons do not clarify on appeal why CR 11 or RCW 4.84.185 would allow fees. Instead, they focus solely on the bad-faith argument from Hiller. Under RCW 4.84.185, the prevailing party in a civil action is entitled to attorney fees if the trial court enters written findings that the action was "frivolous and advanced without reasonable cause."
Procedural bad faith does not relate to the merits of the case; instead, it refers to "vexatious conduct during the course of litigation." Rogerson Hiller Corp., 96 Wn. App. at 928 (quoting Jane P. Mallor, Punitive Attorneys' Fees for Abuses of the Judicial System, 61 N.C. L.Rev. 613, 644 (1983). Examples include dilatory tactics during discovery, failure to meet filing deadlines, misuse of the discovery process, and misquoting or omitting material portions of documentary evidence. Rogerson Hiller Corp., 96 Wn. App. at 928. "The purpose of this type of award is 'to protect the efficient and orderly administration of the legal process.'" Rogerson Hiller Corp., 96 Wn. App. at 928 (quoting Mallor, supra, at 644).
In State v. S.H., 102 Wn. App. 468, 475, 8 P.3d 1058 (2000), Division One of this court 3 held that a trial court's inherent authority to sanction litigation conduct is properly invoked upon a finding of bad faith:
The court's inherent power to sanction is "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." [ Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)]. Sanctions may be appropriate if an act affects "the integrity of the court and, [if] left unchecked, would encourage future abuses." Gonzales v. Surgidev Corp., 120 N.M. 151, 899 P.2d 594, 600 (1995).
S.H., 102 Wn. App. at 475.
Ellison argues that he did not reside in the East Wenatchee address, and accordingly, did not base his defense on bad faith. Because we hold that the East Wenatchee address was at least one of Ellison's houses of usual abode, Ellison's argument is not dispositive on this issue.
We next consider whether the trial court abused its discretion by awarding attorney fees to the Wilsons. As discussed at length above, the trial court carefully stated its reasons for finding in favor of the Wilsons:
I can tell you, for two days as we have sat in here, my intelligence has been insulted virtually from the moment I walked in this door until now. And in my career as a judge, I don't think that I have had anyone come into this courtroom as blatant as what I have observed in this courtroom in this last two days, of virtually perpetrating or attempting to perpetrate a fraud on a court.
2 RP at 255. The trial court again explained the basis for its holding at the motion for reconsideration:
Now, let's go back to where I started with this case when I made my conclusions. . . . They flat came in this courtroom and lied, and I don't know how to tell you any more. They lied to the Court, and they were caught lying to the Court.
RP (Jan. 22, 2007) at 13.
We hold that the trial court did not abuse its discretion by awarding attorney fees to the Wilsons based on Ellison's bad faith and, similarly, we award reasonable attorney fees to the Wilsons for a frivolous appeal under RAP 18.9.
We affirm the trial court's entry of default against Ellison and the award of attorney fees in the Wilson case. We assess appellate attorney fees under RAP 18.9 in the Wilson case. We vacate the default sanction against Ellison in the Boulevard case and remand for the trial court to reconsider its sanction.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and VAN DEREN, A.C.J., concur.