Brereton v. Marian, Docket No. 49174
| Docket Number | Docket No. 49174 |
| Decision Date | 19 September 2022 |
| Citation | 518 P.3d 385 |
| Parties | Daun BRERETON, Plaintiff-Appellant, v. Brandon MARIAN, Defendant-Respondent. |
| Court | Idaho Court of Appeals |
Armitage & Thompson, LLC; JJ Thompson, Spokane, Washington, for appellant. JJ Thompson argued.
Moore Elia & Kraft, LLP; Craig Stacey, Boise, for respondent. Craig Stacey argued.
Daun Brereton appeals from the judgment dismissing his complaint for personal injury due to untimely service. We vacate the judgment and remand for further proceedings consistent with this opinion.
Brereton was involved in a motor vehicle collision with Brandon Marian on October 6, 2018. Both parties obtained counsel and began settlement negotiations. On August 3, 2020, Brereton filed a complaint alleging that he suffered injuries due to Marian's negligence. According to Brereton's counsel, Marian's counsel had previously refused to accept service on Marian's behalf. Brereton retained a process server to serve the complaint on Marian at an address listed on a collision report.
The process server attempted to serve the complaint at the address on August 17, August 27, September 16, and September 23 of 2020, but there was no answer. On October 7, 2020, the process server attempted again. According to the process server, a young woman answered and asserted that, although Marian owned the home, he did not reside there. The young woman believed Marian lived with his parents but she "either did not know or would not tell" the process server the names or address of Marian's parents.
Using county assessor records, the process server confirmed that Marian owned the home at the address and also found a California mailing address for him. The process server sent a request to the United States Postal Service to confirm that the California mailing address was Marian's or to provide a forwarding address for Marian. Using social media, Brereton's counsel found information he believed pertained to Marian indicating that he was from California.
After approximately three weeks of not receiving an answer from the United States Postal Service, the process server began searching for addresses associated with the last name of "Marian," hoping to locate Marian's parents or other relatives. On December 17, 2020, the process server attempted service on one such address but received no answer. The process server also attempted service at another address on January 15, January 23, February 18, and February 21 of 2021, again with no success. The process server made an attempt at yet another address on February 26, 2021, but received no response. This address was the residence of Marian's parents and, because Marian was present during a second attempt, the process server completed service on March 13, 2021. This was 222 days after Brereton filed his complaint.
Marian moved to dismiss Brereton's complaint based on untimely service. In a supporting affidavit, Marian averred that, from before the collision until the time of signing the affidavit, he had resided at the address where the process server initially attempted service. Marian also averred that he had given his brother, a co-resident, permission to accept service on Marian's behalf. Brereton opposed the motion to dismiss, asserting there was good cause for the untimely service in part because he was misled by the information provided by the young woman who answered the door at the time of attempted service on October 7, 2020. Brereton also asserted that Marian should be estopped from asserting untimely service. In response, Marian filed a second affidavit in which he averred that he spoke to his roommate's daughter and that she recalled "answering the door to a person who was attempting to find" Marian. According to Marian, the daughter related that she "vaguely remember[ed]" that a person had asked for Marian and that she informed the person that Marian "may be at [his] parents’ house." The daughter further related that, when asked for the parents’ address, she told the person "to just come back later." The daughter was seventeen years old during the entire period Brereton attempted to serve Marian.1
At the hearing on the motion to dismiss, Brereton orally moved to strike as hearsay the daughter's statements in Marian's second affidavit regarding what she said to the person at the door. After clarifying that Brereton had not filed a written motion to strike, the district court remarked that it was "going to allow this without a motion to strike that puts the parties on notice of [the] objection."
Following the hearing, the district court granted Marian's motion to dismiss.
Brereton moved for reconsideration, again asserting there was good cause for the untimely service. He also renewed his motion to strike and requested that the district court address his argument that Marian should be estopped from asserting untimely service. The district court denied Brereton's motion for reconsideration and entered judgment dismissing the complaint. Brereton appeals.
When a trial court decides a motion to dismiss under I.R.C.P. 4(b)(2) without an evidentiary hearing, the standard of review is the same as that used to review an order granting summary judgment. Crawford v. Guthmiller , 164 Idaho 518, 522, 432 P.3d 67, 71 (2018). Thus, we exercise free review in determining whether a genuine issue of material fact exists and whether the moving party is entitled to dismissal as a matter of law. See Edwards v. Conchemco, Inc. , 111 Idaho 851, 852, 727 P.2d 1279, 1280 (Ct. App. 1986). Disputed facts are construed in favor of the nonmoving party. Castorena v. Gen. Elec. , 149 Idaho 609, 613, 238 P.3d 209, 213 (2010). Because a trial court would be the trier of fact if a motion to dismiss proceeded to an evidentiary hearing, the trial court is permitted to grant dismissal despite the possibility of conflicting inferences. Crawford , 164 Idaho at 523, 432 P.3d at 72. This Court freely reviews issues of law. See Cole v. Kunzler , 115 Idaho 552, 555, 768 P.2d 815, 818 (Ct. App. 1989).
Brereton asserts the district court should have granted his motion to strike and that the district court erred in granting Marian's motion to dismiss.2 Marian responds that the district court did not rule on the motion to strike and that the district court did not err in granting the motion to dismiss. Although we hold that Brereton failed to obtain an adverse ruling on his motion to strike, precluding our consideration of that issue, we vacate the judgment and remand for further proceedings because there are genuine issues of material fact regarding whether Brereton had good cause for the failure to timely serve his complaint.
Brereton asserts that the district court erred by failing to strike hearsay statements from the daughter contained in Marian's second affidavit. Marian responds that the district court did not rule on the motion to strike and that, even if the district court erred, Brereton has failed to show that the error affected his substantial rights. Because we agree that Brereton failed to obtain an adverse ruling, we do not address Marian's alternative argument.
It is well-settled that, in order for an issue to be raised on appeal, the record must reveal an adverse ruling that forms the basis for assignment of error. Whitted v. Canyon Cnty. Bd. of Comm'rs , 137 Idaho 118, 121, 44 P.3d 1173, 1176 (2002). In his appellate brief, Brereton represents that his "objection was denied by the district court because a motion to strike had not been filed." In support, Brereton cites to the following portion of the transcript of the hearing on the motion to dismiss:
This exchange does not show a denial of the motion to strike. Instead, the exchange shows the district court allowed the motion to strike to be oral rather than written. The remaining portions of the record show that the district court did not rule on the motion to strike despite Brereton's renewed motion to strike contained in his motion to reconsider. Because Brereton failed to pursue the motion to an adverse ruling, he failed to preserve this issue for appeal. Consequently, we will not consider the merits of his argument on this issue.
Brereton asserts the district court erred in granting the motion to dismiss because he showed good cause for untimely service and because Marian should be estopped from asserting untimely service. Marian responds that Brereton failed to show good cause or that estoppel applies. We address each issue in turn.
Brereton asserts there was good cause for untimely service based on the misleading information from the young woman and his continued efforts to serve the complaint. Marian asserts Brereton was not diligent in his service efforts and, thus, failed to show good cause.
If a plaintiff fails to serve a defendant within 182 days of the filing of a complaint, a trial court must dismiss the action against that defendant unless the plaintiff shows good cause for the failure to timely serve, in which case the trial court must extend the time for service for an appropriate period. I.R.C.P. 4(b)(2). The determination of whether good cause exists is a factual...
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