Ensley v. Mollmann
| Decision Date | 03 May 2010 |
| Docket Number | No. 63407-1-I.,63407-1-I. |
| Citation | 230 P.3d 599,155 Wash.App. 744 |
| Court | Washington Court of Appeals |
| Parties | Nicholas ENSLEY, Appellant,v.Stephan MOLLMANN and “Jane Doe” Mollmann, husband and wife, and the marital community composed thereof, dba the Twilight Exit; Broadway Boy Ventures, LLC, a Washington limited liability company, dba Impromptu Art & Wine Bar; Defendants,Timothy Lyle Johnson and “Jane Doe” Johnson, husband and wife, and the marital community composed thereof; Respondents,Lyle Sylvester Johnson and “Jane Doe” Johnson, husband and wife, and the marital community composed thereof, dba Red Onion Tavern; Rebecca Humphries and “John Doe” Humphries, wife and husband, and the marital community composed thereof; jointly and severally, Defendants. |
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Aaron Lewis Adee, The Adee Law Firm, PLLC, Seattle, WA, for Appellant.
Jennifer L. Brown, Maggie Eileen Diefenbach, Melissa O'Loughlin White, Cozen O'Connor, Seattle, WA, for Respondents.
¶ 1 After a night of drinking, Rebecca Humphries crashed her car into two parked cars resulting in serious injuries to Nicolas Ensley. Ensley sued Humphries, Red Onion Tavern, and two other bars that served her alcohol, alleging negligent overservice of Humphries while apparently under the influence of alcohol. Ensley appeals trial court orders (1) granting Red Onion Tavern's summary judgment dismissal motion, (2) striking appearance of intoxication evidence as hearsay, (3) affirming dismissal of all claims against Red Onion Tavern, and (4) denying motions to amend complaint, to vacate judgments, and shorten time. Because Ensley presented no admissible evidence that Red Onion Tavern served alcohol to Humphries while apparently intoxicated, we conclude the court properly granted summary judgment dismissal. And because Ensley's remaining contentions are without merit, we affirm.
¶ 2 Early on March 31, 2005, Nicholas Ensley suffered serious injuries when Rebecca Humphries crashed her car into two parked cars after a night of drinking. On the night of March 30, Ensley, Humphries, and Daniel Ahern started drinking at the Impromptu bar, moved to the Red Onion Tavern, and ended their night at Twilight Exit. Ensley sued Humphries and the bars alleging several negligence theories, including negligent overservice.1 Red Onion moved for summary judgment based on the undisputed evidence that Humphries was at the Red Onion for less than 30 minutes, she consumed less than one drink while there, Red Onion patrons who saw her there observed no sign of apparent intoxication, and she consumed several additional drinks after leaving the Red Onion but before the crash.
¶ 3 Ensley opposed summary judgment, relying principally on the deposition of Ahern, who spoke with Red Onion bartender, Clifford Pitcher, “a couple days after the accident.” 2 Ahern testified that Pitcher told him Humphries had glassy eyes and he should not have served her.
[Counsel] Since the crash who have you talked to about the facts of that night?
[Ahern] I've discussed it with Chris, Stacy, Cliff the owner, and Cliff the bartender at the Red Onion.
¶ 4 In response, Red Onion moved to shorten time and to strike this testimony as inadmissible hearsay.3 Ensley opposed the motions. He argued that as Red Onion's speaking agent, Pitcher's testimony was admissible against Red Onion as a statement of a party opponent under ER 801(d)(2). The court granted the motions to shorten time, strike declaration excerpts based on Ahern's hearsay testimony, and summary judgment dismissing Ensley's claims against Red Onion. Ensley then moved for reconsideration, arguing for the first time that Ahern's statements were either nonhearsay because they were not offered to prove the truth of the matter asserted or admissible under ER 803(a)(3)'s state of mind hearsay exception. The court denied reconsideration on April 17, 2007. Ensley then filed a motion for discretionary review on April 27, 2007, which we denied on June 25, 2007.
¶ 5 On November 21, 2007, Ensley moved to amend his complaint to add claims against Pitcher. He filed this motion just weeks before the discovery cutoff and two months before the scheduled trial, despite knowledge for almost ten months about Pitcher's alleged inculpatory statements to Ahern. The court denied the motion to amend, citing unfairness to the defendants by delaying the trial beyond the scheduled date.4
¶ 6 Eight months later, Ensley filed a CR 60(b) motion to vacate the orders granting Red Onion's motion to strike, granting summary judgment dismissal, and denying motion to amend his complaint. The court denied the motion to vacate and Ensley's subsequent motion for reconsideration. And on September 11, 2008, the court granted Red Onion's motion for CR 11 sanctions against Ensley's counsel.
¶ 7 On December 1, 2008, Red Onion filed a motion to affirm that the summary judgment order dismissed all claims by Ensley against Red Onion Tavern. 5 The court granted this motion on December 10, 2008.6
¶ 8 We review most of Ensley's assignments of error under an abuse of discretion standard. A court abuses its discretion when its decision is based on untenable grounds or reasoning. Luckett v. Boeing Co., 98 Wash.App. 307, 309, 989 P.2d 1144 (1999). When reviewing an order granting summary judgment, we engage in the same inquiry as the trial court, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Jones v. Allstate Ins. Co., 146 Wash.2d 291, 300, 45 P.3d 1068 (2002). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Jones, 146 Wash.2d at 300-01, 45 P.3d 1068.
¶ 9 Ensley first argues that the court erred by striking declaration excerpts opposing summary judgment because it found the evidence was inadmissible hearsay. The stricken excerpts included Ahern's above-quoted deposition testimony in which he claimed that Pitcher told him Humphries looked glassy eyed and he should not have served her a beer. The court also struck Ensley's expert witness testimony that relied on Ahern's deposition testimony. 8 Red Onion responds that the court properly excluded these statements because Pitcher was not Red Onion's “speaking agent.” This court reviews evidentiary rulings made in connection with a summary judgment ruling de novo. Ross v. Bennett, 148 Wash.App. 40, 45, 203 P.3d 383 (2008); Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998).
But “[i]n order for a statement to satisfy these requirements, the declarant must be authorized to make the particular statement at issue, or statements concerning the subject matter, on behalf of the party.” Lockwood v. AC & S, Inc., 109 Wash.2d 235, 262, 744 P.2d 605 (1987).
¶ 11 The Supreme Court addressed a nearly identical issue in Barrie v. Hosts of Am., Inc., 94 Wash.2d 640, 618 P.2d 96 (1980). There, a bar patron crashed his car and died after drinking at a hotel bar. Barrie, 94 Wash.2d at 641, 618 P.2d 96. The decedent's estate sued Hosts of America, alleging negligence for serving Barrie while he was obviously intoxicated. Barrie, 94 Wash.2d at 641, 618 P.2d 96. The estate argued that a bar manager's statement that Barrie was “smashed” was admissible under ER 801(d)(2)(iii) because she was the hotel's authorized speaking agent. Barrie, 94 Wash.2d at 643-44, 618 P.2d 96. The court disagreed and held that because “[n]o evidence of such authorization [was] present in the ... record” the statement did not satisfy ER 801(d)(2)(iii). Barrie, 94 Wash.2d at 645, 618 P.2d 96.
¶ 12 The circumstance here is analogous-no evidence appears in the record that Pitcher was expressly authorized to speak on behalf of Red Onion. And a bartender is not necessarily authorized to admit key facts related to liability merely because he is the only server on duty and thus in “the position of authority over the service.” Br. of Appellant at 32; see Barrie 94 Wash.2d at 644-45, 618 P.2d 96. Absent evidence of express speaking authority, Pitcher is not Red Onion's speaking agent and his statement was hearsay.
¶ 13 Ensley relies on Lockwood, 109 Wash.2d 235, 744 P.2d 605. Because there was no evidence of express authority, the...
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... ... motion could have been timely made earlier in the ... litigation.'" Ensley v. Mollmann, 155 ... Wn.App. 744, 759, 230 P.3d 599 (quoting Doyle v. Planned ... Parenthood of Seattle-King Cnty., Inc ., 31 Wn.App ... ...
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... ... motion could have been timely made earlier in the ... litigation.'" Ensley v. Mollmann , 155 ... Wn.App. 744, 759, 230 P.3d 599 (quoting Doyle v. Planned ... Parenthood of Seattle-King Cnty., Inc. , 31 Wn.App ... ...