Farmer v. Davis

• Court: Washington Court of Appeals
• Writing for the Court: SIDDOWAY, J.
• Citation: Farmer v. Davis, 161 Wash.App. 420, 250 P.3d 138 (Wash. App. 2011)
• Decision Date: 19 May 2011
• Docket Number: No. 28817–0–III.
• Parties: Christopher M. FARMER, a single person, Appellant,v.Bradley M. DAVIS and Jane Doe Davis, and the marital community thereof, Respondents.

161 Wash.App. 420

250 P.3d 138

Christopher M. FARMER, a single person, Appellant,

v.Bradley M. DAVIS and Jane Doe Davis, and the marital community thereof, Respondents.

No. 28817–0–III.

Court of Appeals of Washington, Division 3.

April 21, 2011.Reconsideration Denied May 19, 2011.

Douglas Dwight Phelps, Phelps & Associates, P.S., Spokane, WA, for Appellant.Raymond W. Schutts, Law Offices of Raymond W. Schutts, Liberty Lake, WA, for Respondent.SIDDOWAY, J.

¶ 1 Washington statutes permit service of a summons by delivery to someone other than the defendant (substitute service) if a copy is left at the house of the defendant's usual abode with a resident of suitable age and discretion. RCW 4.28.080(15). In this case, the only delivery of a summons for Bradley Davis that was timely accomplished was delivery to Mr. Davis's mother's home, where Mr. Davis had resided three years earlier, at the time of the auto accident giving rise to the action. The trial court granted summary judgment dismissing Mr. Farmer's complaint on grounds that undisputed evidence established that at the time of service, Mr. Davis's mother's home was not the house of his usual abode. Mr. Farmer appeals, alleging legal error by the trial court in failing to apply a required presumption in favor of his affidavits of service and in disregarding the rule of liberal construction announced in Sheldon v. Fettig, 129 Wash.2d 601, 609, 919 P.2d 1209 (1996). He also argues that the court abused its discretion in refusing to grant a continuance of the motion under CR 56(f) and in striking portions of his affidavits. Because the trial court properly applied the law to the facts of this case and did not abuse its discretion, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Christopher Farmer and Bradley Davis were involved in an automobile accident on April 21, 2006. On April 10, 2009, shortly before the running of the statute of limitations, Mr. Farmer filed suit against Mr. Davis for negligence. Relying on RCW 4.16.170, which tolls the statute of limitations for 90 days upon filing suit, Mr. Farmer's counsel undertook to serve Mr. Davis.

¶ 3 On May 27, 2009, a process server delivered a copy of the summons and complaint to 1520 Tombstone Street, Rathdrum, Idaho, the residence address for Mr. Davis set forth in the police report of the 2006 accident. The address turned out to be that of Laurie Davis, Mr. Davis's mother. On June 3, 2009, Mr. Davis's lawyer filed a notice of appearance, reserving defenses for improper service and lack of jurisdiction.

¶ 4 Because Mr. Farmer was reportedly “[c]oncerned that the Defendant might attempt to deny [the May 27] service,” Parker Gibson, an Idaho investigator, was hired to attempt personal service on Mr. Davis. Clerk's Papers (CP) at 38 (Brief in Response to Defendant's Motion for Summary Judgment). Mr. Gibson delivered a second copy of the summons and complaint to Ms. Davis at the Tombstone address on June 25.¹ Mr. Gibson's later declaration in opposition to summary judgment acknowledged that Ms. Davis refused to accept service and disavowed knowledge of her son's whereabouts. Mr. Gibson eventually identified a 13537 Halley Street address in Rathdrum as Mr. Davis's residence and personally served the summons and complaint there on July 16. Upon being served, Mr. Davis asked, “Isn't it too late?” to which Mr. Gibson responded, “No. It's not.” CP at 80. Mr. Davis replied, “Oh. Alright, well I've been waitin'.” CP at 80.

¶ 5 In October 2009, Mr. Davis, who had asserted affirmative defenses of insufficient service and the statute of limitations in his answer, moved for summary judgment dismissing Mr. Farmer's complaint. Mr. Davis's declaration in support of the motion stated that he had not lived at his mother's address on Tombstone since getting married on January 27, 2007; that upon getting married, he and his wife lived in an apartment in Coeur d'Alene, Idaho, until the spring of 2009, when they moved to their 13537 Halley Street residence; and that he had never authorized his mother or anyone else to accept service on his behalf. Ms. Davis's declaration in support of the motion stated that the first process server had handed her legal paperwork without stating what the papers were, and that she only realized in looking at them after the process server left that they were for a lawsuit pertaining to her son. She stated that her son was never mentioned by the process server and that she made no representation she was accepting the papers on her son's behalf. She stated that she called her son about the papers but has no recollection that she ever gave them to him. Addressing the second delivery of papers, Ms. Davis stated that the process server approached her in her yard and stated he was there to serve papers for Bradley Davis; she responded that Bradley did not live at her home and repeatedly refused to accept the papers, stating that the process server needed to serve Bradley.

¶ 6 Mr. Farmer opposed the motion with affidavits of his lawyer and Mr. Gibson, recounting Mr. Gibson's information gathering and other efforts to locate and serve Mr. Davis. The affidavits stated that (1) Mr. Gibson contacted one of Ms. Davis's neighbors on Tombstone, who said that Mr. Davis had a boat and other personal items at the Tombstone address, that he was unsure where Mr. Davis lived, and that he did not want to get involved in helping Mr. Gibson; (2) the recorded message for the telephone at Ms. Davis's residence stated, “Hi, we're not home right now but if you'd like to leave a message for Laurie, press 1, Brian, press 2 or Bradley, press 3”; (3) Mr. Gibson's review of “computer services” identified the Tombstone address as that of Bradley Davis and Laurie Davis and identified Ms. Davis's residence telephone number as that of Bradley Davis as well; (4) Mr. Gibson visited an apartment on Emma Street in Coeur d'Alene, an address identified by a “computer service” as an alternative short-term residence for Mr. Davis, where he was told by an unidentified tenant that she had assumed a prior tenant's lease and had no information about Mr. Davis; and (5) Mr. Gibson determined that Mr. Davis received a speeding ticket on August 24, 2009 that was completed with the same Emma Street address in Coeur d'Alene where he had unsuccessfully attempted to locate Mr. Davis and despite reflecting an incorrect address, the ticket was timely paid. CP at 54, 59–60. From these facts and Mr. Davis's statements made to Mr. Gibson when served in July, the affidavits of Mr. Farmer's lawyer and Mr. Gibson expressed their conclusions that Mr. Davis received actual notice of the lawsuit and thereafter evaded service, including by providing an outdated Emma Street address to the Idaho district court in connection with the speeding ticket. Mr. Farmer argued that Ms. Davis's home should be considered a second “house of usual abode” for Mr. Davis under the liberal construction of the substitute service statute required by Sheldon, 129 Wash.2d 601, 919 P.2d 1209. He also argued that Mr. Davis should be judicially estopped from denying service because of his misrepresentation of the false Emma Street address evidenced by the August 2009 speeding ticket.

¶ 7 Mr. Davis moved to strike portions of Mr. Gibson's affidavit containing hearsay from third parties and “computer services,” and moved to strike conclusions and opinions set forth in Mr. Gibson's affidavit and that of Mr. Farmer's lawyer. In reply, Mr. Davis submitted a declaration stating that when cited for speeding in August 2009, the officer completed the citation using the Emma Street address reflected on his driver's license and registration, albeit several months outdated by that time. Mr. Davis stated that he was focused on the citation for speeding and the $113 fine, not the erroneous address, and paid the ticket rather than contest it. With respect to the answering machine message at the Tombstone residence, Ms. Davis provided a declaration stating that both of her sons had moved out of her home prior to the first attempted service, that she now lived alone, and, “The only reason both boys' names continue to be mentioned on the message is because I feel safer if it is not readily apparent to callers that I live alone. Keeping the old answering machine message was my decision, not Brad's or Bryan's.” CP at 98. Both Ms. Davis and Mr. Davis stated by reply declaration that notwithstanding the recorded message, the answering machine had never been used to take messages for Mr. Davis after he married and moved out.

¶ 8 At the December 17, 2009 hearing on the motions, the trial court, noting that no response had been received to the motion to strike, continued the hearing to early January so that Mr. Farmer could respond. In continuing the hearing, she stated, “[T]his is not an opportunity for the plaintiff to submit anything new. The plaintiff has had their opportunity to respond.” Report of Proceedings (RP) at 8. When she asked Mr. Farmer's counsel whether he understood, he responded, “I do.” RP at 8.

¶ 9 On December 30, 2009, Mr. Farmer nonetheless filed a motion seeking a continuance of the summary judgment motion pursuant to CR 56(f), in order to depose Mr. Davis and his mother. The affidavit in support of the motion provided only conclusory arguments about “fair[ness]” and a need for a “complete record” in explaining the asserted need for the additional discovery. CP at 107.

¶ 10 At the continued hearing, the trial court granted Mr. Davis's motion to strike, denied Mr. Farmer's motion to continue, and granted summary judgment dismissing Mr. Farmer's complaint. In denying the motion for a continuance, the court observed that Mr. Farmer did not make the required showings to justify the continuance.

¶ 11 Mr. Farmer timely appealed, assigning error to the trial court's (1) asserted failure to apply a required presumption of correctness to his affidavits of service, (2) granting Mr....