Bouchra Agour v. Ian & Jane Doe Dalrymple, Resps.

• Court: Court of Appeals of Washington
• Decided: September 29, 2014
• Docket: 70206-8
• Status: Unpublished

Opinion

20!^ SEP 29 ArilhOb

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

BOUCHRAAGOUR, No. 70206-8-1 Appellant, DIVISION ONE v.

UNPUBLISHED OPINION IAN M. DALRYMPLE and JANE DOE DALRYMPLE, husband and wife, and the marital community comprised thereof,

Respondents. FILED: September 29, 2014

Appelwick, J. — Agour appeals a summary judgment dismissing her

personal injury suit against Dalrymple for insufficient service of process. She

contends the superior court abused its discretion in denying her motions to

continue the summary judgment hearing and to consolidate that lawsuit with a

second, identical suit she filed against Dalrymple. She also contends the court

erred in granting summary judgment. The court was within its discretion in

denying Agour's motions, but it erred in granting summary judgment. We reverse

and remand for further proceedings.

FACTS

On October 5, 2009, Bouchra Agour allegedly suffered injuries when her

car was struck from behind by a car driven by Ian Dalrymple. No. 70206-8-1 / 2

On January 26, 2012, Agour filed the first of two identical lawsuits against

Dalrymple. Process server Michael James made three unsuccessful attempts to

serve Dalrymple at his Seattle residence.

According to James, he successfully served Dalrymple on June 7, 2012.

His affidavit of service states in pertinent part:

Mr. Dalrymple can best be described as a 40ish white male, crew cut blonde, light brown hair about 6'0", 180 lbs. I spoke with his neighbor. . . and confirmed the correct address for Mr. Dalrymple prior to service today. Upon service Mr. Dalrymple initially denied his identity stating, "He is not home right now", but took the paperwork when I noted this was for his auto accident in October of 2009 and he needed to get in touch with his insurance carrier, State Farm. He thanked me.

On July 23, 2012, Dalrymple answered the complaint and asserted the

affirmative defense of insufficient service of process.

On August 15, 2012, Agour refiled her complaint under a new cause

number. Process server Michael James attempted, but failed, to serve

Dalrymple with this second suit multiple times in August and September 2012.

On September 10, 2012, copies of the second summons and complaint were left

with "Jane Doe" who said she had evicted Dalrymple and had no forwarding

information. Agoura subsequently attempted service of the second suit by

publication and with the Secretary of State.

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On November 1, 2012, Dalrymple moved for summary judgment in the

initial suit, arguing there was insufficient service of process. In a supporting

declaration, he alleged in part as follows:

... On June 7, 2012, . . . [n]o adult other than me resided at [my address].

. . . I am 42 years-old, with dark brown hair, and I weigh around 172 pounds. I do not have a crew cut and did not have a crew cut on June 7, 2012.

... I was not physically handed legal papers in this matter by anyone at any time. Legal papers . . . were left at my residence on June 7, 2012, either under the mat or taped to the door.

... Mr. Winsor III visited me in June of 2012 (I do not recall the exact dates of his visit). Mr. Winsor III is married and lives in New Zealand. Mr. Winsor III appears to be in his 40s, had a crew cut when he visited me, and otherwise appears to be the individual described in the "Affidavit of Service". . . .

... Mr. Winsor III did advise me that someone came by the house with legal papers while I was away, and also told me something to the effect of "I told them that I was not you, but they would not believe me." To my understanding, Mr. Winsor III did not accept the papers, but they were left at my residence anyway.

... Mr. Winsor III was not staying overnight at my residence on June 7, 2012.

Dalrymple also submitted a declaration from Henry Winsor III. Winsor

alleged in part:

... On June 7, 2012, I had blonde hair which was trimmed short in a "crew cut" style.

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. . . The process server asked if I was Ian Dalrymple. I told him I was not, and that I was "Henry." The process server said something to the affect of "Well I have a description of Ian Dalrymple and you fit the description." I offered to show him my [identification] but he said that didn't matter. At that point he shoved papers at me and said I had to take them and that I had "been served." I told him that I was not Ian and I would not accept the papers. ... I closed the door. He said through the door that he was leaving the papers at the door. I said "Fine; I am not responsible for them."

. . . I am married and live at [address] Auckland, New Zealand. I am not related to Ian Dalrymple and I did not live at Mr. Dalrymple's house, nor was I resident therein, on June 7, 2012. I did not stay the night at Mr. Dalrymple's residence the night before or after June 7, 2012.

On February 22, 2013, Dalrymple moved for summary judgment in the

second lawsuit.

On March 1, 2013, Agour filed a response to the motion for summary

judgment in the first suit.

On March 6, 2013, nine days before the first summary judgment hearing

and sixteen days before the second, Agour moved to consolidate the two cases

and to continue the first summary judgment hearing. Dalrymple opposed the

motion, arguing that Agour had known of the first summary judgment motion

since November 2012, and that the proper procedure for eliminating redundant

lawsuits was dismissal of one suit under CR 41, not consolidation.

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On March 14, 2013, the court denied the motion to consolidate. It noted

that Agour had sought an expedited decision and had not filed a reply to

Dalrymple's response.

On March 15, 2013, the court heard argument on the motions to continue

and for summary judgment on the first suit. Dalrymple's counsel pointed out that

Agour had four months to conduct discovery and should not receive a

continuance. The court agreed, stating that "discovery could have been had at

any time but has not been attempted." The court then granted summary

judgment, ruling that "the server's objective belief that somebody may be the

individual is not what's relevant. What is relevant is did you actually serve the

defendant by proper substitute service or by personal service? And there was

neither."

On March 18, 2013, the parties entered a stipulated order dismissing

Agour's second, identical suit with prejudice.

Agour filed notices of appeal from the dismissal of her first lawsuit and the

order denying consolidation. A commissioner of this court ruled that the order

dismissing the first suit was appealable as a matter of right and that the appeal

would bring up the consolidation ruling for review. There being no need or basis

for discretionary review of the order denying consolidation, the Commissioner

denied discretionary review and dismissed that appeal.

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DECISION

Agour first contends the court abused its discretion in denying her motions

for consolidation and a continuance. There was no abuse of discretion.

We will not disturb a decision denying a continuance absent a manifest

abuse of discretion. Lewis v. Bell. 45 Wn. App. 192, 196, 724 P.2d 425 (1986).

A court properly denies a continuance where the requesting party does not offer

a good reason for the delay in obtaining the desired evidence, jd. at 196. Here,

Agour's counsel claimed to have had no opportunity to take the deposition of

Henry Winsor in New Zealand. But, as the trial court noted, the motion for

summary judgment had been pending for nearly five months "and discovery

could have been had at any time but [was not] attempted." The court was within

its discretion in denying a continuance.

For similar reasons, the court did not abuse its discretion in denying

consolidation. Leader Nat'l Ins. Co. v. Torres. 51 Wn. App. 136, 142, 751 P.2d

1252 (1988), affd, 113 Wn.2d 366, 779 P.2d 722 (1989) (decision regarding

consolidation will be reversed only upon a showing of abuse of discretion and

resulting prejudice). CR 42(a) provides:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. No. 70206-8-1 / 7

In this case, the motion to consolidate was filed more than four months after the

initial motion for summary judgment, after briefing on the summary judgment

motions, and just before the hearings on both motions. And, as Dalrymple

correctly points out, the second suit was entirely unnecessary and duplicative

since Agour could have simply served Dalrymple again in the first suit. In these

circumstances, we cannot say the court abused its discretion.

The remaining issue is whether the court erred in dismissing Agour's first

lawsuit on summary judgment. We note initially that when a defendant seeks

dismissal for lack of personal jurisdiction, the plaintiff normally bears the initial

burden of establishing a prima facie case of sufficient service. Streeter-Dvbdahl.

157 Wn. App. 408, 412, 236 P.3d 986 (2010). An affidavit of service, however,

"is presumptively correct, and the party challenging the service of process bears

the burden of showing by clear and convincing evidence that service was

improper." id; Leen v. Demopolis. 62 Wn. App. 473, 478, 815 P.2d 269 (1991).

The parties in this case did not argue these principles below or on appeal. Nor

did the court mention them in its oral and written rulings. Instead, the motion to

dismiss was argued and decided under CR 56 and traditional principles of

summary judgment.

Summary judgment is appropriate only if there is no genuine issue of

material fact and the moving party is entitled to judgment as a matter of law. CR

56(c). The moving party bears the initial burden of showing the absence of an

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issue of material fact. Right-Price Recreation, LLC v. Connells Prairie Cmtv.

Council. 146 Wn.2d 370, 381, 46 P.3d 789 (2002). If the moving party satisfies

that burden, the burden shifts to the nonmoving party to demonstrate an issue of

fact. Seven Gables Corp. v. MGM/UA Entm't Co.. 106 Wn.2d 1,13, 721 P.2d 1

(1986). On review, we engage in the same inquiry as the trial court and view the

facts in a light most favorable to the nonmoving party. Right-Price Recreation.

146Wn.2dat381.

A defendant can move for summary judgment in one of two ways. It can

submit its version of the facts and allege there are no genuine issues under those

facts, or it can elect to simply point out the absence of evidence supporting the

plaintiffs case. Guile v. Ballard Cmtv. Hosp., 70 Wn. App. 18, 21, 851 P.2d 689

(1993). By submitting declarations and arguing that they demonstrated the

absence of an issue of fact regarding proper service,1 Dalrymple elected the first

method of moving for summary judgment.

In support of his motion, he submitted a personal declaration and the

declaration of Henry Winsor III. Dalrymple's declaration described himself as 42

years old, around 172 pounds, with dark brown hair. He alleged he "did not have

a crew cut on June 7, 2012." He denied receiving service and alleged that the

1 He argued that the there was no issue of fact as to whether a summons was served by delivering a copy "to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein." RCW 4.28.080(15).

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person James attempted to serve was his friend, Henry Winsor III. He stated

that "Mr. Winsor III appears to be in his 40s, had a crew cut when he visited me,

and otherwise appears to be the individual described in the 'Affidavit of Service.'"

Winsor's declaration stated that he was the person James attempted to

serve. He alleged he had blonde hair and a crew cut on the service date. He did

not, however, address the other physical characteristics of the person described

in James' affidavit of service. He claimed he told James his name and offered to

show him identification. He also claimed that the service papers were simply left

on the porch and that he was visiting, but not residing with, Dalrymple on the

service date. Based on these declarations, Dalrymple argued that he was

entitled to summary judgment because James's description of the hair of the

person he served did not match Dalrymple's self-description but did match

Winsor's.

In response, Agour noted that (a) James' description of the person he

served matched Dalrymple's self-description in nearly every respect, (b)

Dalrymple presented no evidence distinguishing himself from James' description

of a six foot white male, (c) Winsor is a New Zealand resident and the person

James served spoke with an American accent, (d) the accent James heard was

similar to the one he heard when he spoke to Dalrymple by phone prior to the

service date, and (e) James denied Winsor's version of the statements made

during the attempted service, as well as Winsor's and Dalrymple's claim that the No. 70206-8-1/10

summons was left on the porch. Agour requested an evidentiary hearing to

resolve issues of fact and credibility.

Viewing the evidence in a light most favorable to Agour, we conclude

Dalrymple did not carry his burden of showing the absence of a genuine issue of

fact. In fact, Dalrymple's submissions did just the opposite. His own declaration

demonstrated that he either matched, or did not dispute his resemblance to,

every physical characteristic of the person James described in his affidavit

except for the person's hair color and style. And, when viewed in a light most

favorable to Agour, the differences in the hair descriptions were insufficient to

warrant summary judgment. The color difference—light brown versus dark

brown—was slight. And, Dalrymple's allegation that he did not have a crew cut

on the service date did not rule out that his hair was short and/or worn in a

manner similar to a crew cut.

Similarly, while Winsor claimed he had blonde hair and a crew cut on the

service date, neither he nor Dalrymple specifically addressed whether Winsor

matched the rest of the physical description provided by James. Winsor said

nothing about his age, weight, height, skin color, or accent. To the extent

Dalrymple addressed those attributes, he did so in extremely vague and

conclusory terms, stating that "Mr. Winsor III appears to be in his 40's, had a

crew cut when he visited me, and otherwise appears to be the individual

described in the 'Affidavit of Service.'" (Emphasis added.) Such vague

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allegations are insufficient to demonstrate the absence of a material issue of fact.

Thus, summary judgment was error.

In addition, despite being denominated as a motion for summary

judgment, the motion was and should have been treated as a motion to dismiss.

As noted above, an affidavit of service is presumptively correct and the

defendant must demonstrate insufficient service by clear and convincing

evidence. Streeter-Dvbdahl. 157 Wn. App. at 412. Dalrymple's and Wilson's

declarations were plainly insufficient to meet this standard.

In sum, the court erred in granting summary judgment. The continuance

and consolidation rulings are affirmed. The summary judgment is reversed

without prejudice to further proceedings concerning the sufficiency of service.

WE CONCUR:

V-P^/A^t^. CO,

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