Campbell v. Fernandez
| Decision Date | 06 October 2020 |
| Docket Number | C/w No. 36981-1-III),No. 36683-9-III (,36683-9-III ( |
| Parties | Ivonne CAMPBELL and Vince Campbell, wife and husband and the marital community comprised thereof, Appellants, v. Ana FERNANDEZ and John Doe Fernandez, wife and husband and the community comprised thereof, Respondents. |
| Court | Washington Court of Appeals |
George Joseph Schwab II, Calbom & Schwab P.S.C., P.O. Box 1429, Moses Lake, WA, 98837-0218, Ashley Noelle Grout, Calbom & Schwab P.S.C., Bryant Alexander Sutton, Attorney at Law, 1240 S Pioneer Way, Moses Lake, WA, 98837-2347, John Anthony Ditore, John Ditore, 500 Union St. Ste. 847, Seattle, WA, 98101-4065, George M. Ahrend, Ahrend Law Firm PLLC, David Christopher Whisenand, Attorney at Law, 100 E Broadway Ave., Moses Lake, WA, 98837-1740, for Appellants.
Joel R. Comfort, John Raschko, Miller Mertens & Comfort PLLC, 1020 N Center Pkwy. Ste. B, Kennewick, WA, 99336-7161, for Respondents.
OPINION PUBLISHED IN PART
Siddoway, J. ¶ 1 It is common practice and one dictated by "elementary prudence" for a plaintiff to file a second, protective action if personal jurisdiction over a defendant might reasonably be contested in the original action. E.g. , Saylor v. Dyniewski , 836 F.2d 341, 345 (7th Cir. 1988) ; McFarlane v. Esquire Magazine , 74 F.3d 1296, 1301 (D.C. Cir. 1996). "There is nothing necessarily inappropriate ... about filing a protective action." Exxon Mobil Corp. v. Saudi Basic Indus. Corp. , 544 U.S. 280, 294 n.9, 125 S. Ct. 1517, 161 L. Ed. 2d 454 (2005) (citing cases).
¶ 2 In Banzeruk v. Estate of Howitz , this court suggested in dicta that when the sufficiency of a plaintiff's service of process in an original action is in doubt and the limitations period will soon expire, a second, protective action can be tentatively commenced in order to obtain additional time (90 days from filing) within which to accomplish effective service. 132 Wash. App. 942, 948, 135 P.3d 512 (2006) (citing RCW 4.16.170 ). Facing those circumstances, the appellants in these consolidated appeals filed a second, protective action two days before the running of the limitations period and effected service of process within 90 days thereafter. The protective action was properly filed and could have proceeded but for a twist: the appellants chose not to disclose the existence of the protective action in response to a motion to dismiss their original action (service in the protective action had not yet been effected), and the trial court dismissed the original action with prejudice as time-barred.
¶ 3 The appellants’ original action was dismissed for insufficient service of process. On de novo review of that dismissal, we reject Ms. Fernandez's argument that the Campbells were required to rely on her earliest "known addresses" in effecting substitute service under RCW 46.64.040.
¶ 4 We affirm dismissal of the protective action but reverse dismissal of the original action. We remand the original action for further proceedings.
PROCEDURAL HISTORY
¶ 5 To recover damages sustained in an automobile accident that took place on December 22, 2015, Ivonne Campbell and her husband filed suit in Benton County against Ana Fernandez on August 7, 2018 ("the original action"). On the same day the original action was filed, an investigator attempted to serve the summons and complaint on Ms. Fernandez at an Agate Street address she provided to responding officers on the day of the accident. Ms. Fernandez no longer lived there. Using an online database and Ms. Fernandez's birthdate, the investigator found an address on Jadwin Avenue associated with Ms. Fernandez. On August 10, the investigator traveled to that address where he believed he accomplished personal service on Ms. Fernandez's grandmother. Whether the service was effective was later called into doubt.
¶ 6 In October 2018, Ms. Fernandez, through counsel engaged by her automobile insurer, answered the complaint without asserting insufficiency of service of process as an affirmative defense.1 But the Campbells had served a request for admission asking Ms. Fernandez to admit she was not contesting service and on November 8, Ms. Fernandez served an equivocal denial. Upon receiving the response to the request for admission, the Campbells’ lawyer contacted another investigator to locate Ms. Fernandez. Using Ms. Fernandez's full name (Ana Alisas Fernandez), her birthdate, and a number of different databases, the investigator found three addresses associated with Ms. Fernandez in Nogales, Arizona. The investigator concluded that an address on 1st Street in Nogales ("the Nogales address") was her most recent address. Based on this information that Ms. Fernandez had moved out of state, the Campbells’ lawyer undertook to effect service on the secretary of state under the nonresident motorist statute, RCW 46.64.040, using the Nogales address. On November 13, someone signed, illegibly, for the service package that was sent by certified mail to the Nogales address.
¶ 7 On November 20, Ms. Fernandez moved for leave to amend her answer to add affirmative defenses of lack of service and lack of personal jurisdiction. The motion was granted over the Campbells’ objection.
¶ 8 Given this indication that Ms. Fernandez might not yet have been effectively served, the Campbells employed a process server who attempted to serve the summons and complaint on Ms. Fernandez at the Nogales address on December 10. According to the process server, he spoke with Erlasena Valenzuela, a relative, who said that Ms. Fernandez had moved to Mexico.
¶ 9 On December 17, the Campbells used a local Arizona constable to try, again, to serve the documents on Ms. Fernandez at the Nogales address. The constable served the documents on Enrnestina Valenzuela. A limited deposition of Ms. Fernandez that the Campbells noted for December 19 was not attended by Ms. Fernandez, with her lawyer relying on the position that she had not been effectively served.
¶ 10 On December 20, the Campbells commenced a second action against Ms. Fernandez in Benton County ("the protective action") using a complaint identical to that filed in the original action. They did not put the defense on notice of the commencement of the protective action at that time. We assume the Campbells did not disclose the protective action because they were concerned Ms. Fernandez was avoiding service.2
¶ 11 On December 21, the Campbells undertook again to effect substitute service on the secretary of state, once again relying on the Nogales address.
¶ 12 In January 2019, Ms. Fernandez filed a CR 12(b) motion to dismiss the Campbells’ original action. She argued that the Campbells never accomplished service, the court was without jurisdiction over her, and the statute of limitations had now run. She challenged the sufficiency of the Campbells’ substitute service on the secretary of state on the basis that the Campbells did not direct notice to Ms. Fernandez via registered mail to her Agate Street address or the Jadwin Avenue address, which she argued were "the only two addresses that could possibly be considered ‘last known.’ " Clerk's Papers (CP) at 62.
¶ 13 The Campbells responded with a declaration of their lawyer that described his firm's efforts to serve Ms. Fernandez, including its retention of two private investigators, the second of whom provided the firm with his identification of the Nogales address as Ms. Fernandez's most recent address.
¶ 14 At the hearing on the motion, Ms. Fernandez's lawyer questioned in passing how the Campbells arrived at the Nogales address used in attempting substitute service. The trial court, expressing the view that due diligence could not be shown without declarations from the investigator and process server, granted the motion. It dismissed the action with prejudice in light of the fact that the statute of limitations had apparently run. The Campbells moved for reconsideration, presenting the trial court with declarations of their private investigators explaining how they identified the addresses at which service was attempted. The motion was denied. The order of dismissal was timely appealed.
¶ 15 On March 14, 2019, the Campbells accomplished personal service on Ms. Fernandez of the summons and complaint in the protective action. Its process server found her at her place of work in Nogales.
¶ 16 Ms. Fernandez moved for summary judgment in the protective action, arguing that it was barred by res judicata, collateral estoppel, or was improper claim splitting. In resisting the motion, the Campbells argued that in filing the second action, they had followed the procedure endorsed by Banzeruk . The trial court granted Ms. Fernandez's motion and dismissed the protective action.
¶ 17 The order dismissing the protective action was timely appealed. A motion to stay the appeal of dismissal of the original action and consolidate it with the appeal of the protective action was granted.
ANALYSIS
¶ 18 The Campbells’ first challenge in their consolidated briefing is to the summary judgment dismissal of their protective action, so we begin with that.
¶ 19 Ms. Fernandez moved for summary judgment dismissal of the protective action as improper claim splitting and as barred by res judicata. We review "summary judgment de novo, engaging in the same inquiry as the trial court."
Davis v. Blumenstein , 7 Wash. App. 2d 103, 111, 432 P.3d 1251 (2019). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c).
¶ 20 Filing a protective action is not prohibited claim splitting. It does not subject the defendant to duplicative litigation or the cost and effort of defending multiple suits, which is the evil guarded against by the rule against claim splitting. Landry v. Luscher , ...
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