PILED COURT OF APPEALS STATE OF OW I WASHINGTON 2018 JUL 23 AM 9:11 .
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
SHANNON M. GENTRY, Individually, ) ) DIVISION ONE Appellant, ) ) No. 77051-9-1 v. ) ) KYLE E. ROBERTS, and "JANE DOE" ) UNPUBLISHED OPINION ROBERTS, and the marital community ) composed thereof, ) ) Respondent. ) ) JOVITA CARPENTER and "JOHN ) DOE" CARPENTER, and the marital ) community composed thereof, ) ) Defendants. ) FILED: July 23, 2018 )
DWYER, J. — Immediately after Shannon Gentry and Kyle Roberts were in
a vehicle collision, Roberts provided a home address in Duvall, Washington.
Three years later, Gentry filed a personal injury action against him. A process
server delivered a copy of the summons and complaint to Roberts'father at the
Duvall address. Roberts later moved for summary judgment, arguing that service
was improper because the Duvall house was not his usual abode at the time of
service. The trial court agreed and dismissed the case. Because Gentry raises
a genuine issue of material fact as to whether the Duvall house was a center of
Roberts' domestic activity, we reverse and remand for further proceedings. No. 77051-9-1
Kyle Roberts and Shannon Gentry were in an automobile collision on
August 30, 2013. At the time, Roberts lived in Duvall, Washington. Nearly three
years after the collision, Gentry filed a personal injury action against Roberts. On
September 7, 2016, Gentry's process server delivered copies of the summons
and complaint to Roberts' father at the Duvall house. According to the process
server, the father stated that Roberts was a "co-resident." But the father attests
that he said no such thing.
Roberts presented evidence that he had not lived at the Duvall house
since January 1, 2014. From November 2015 to July 2016, he lived with and
paid rent to Grant Gemza in Shoreline. From August to November 2016, he lived
in Seattle with his girlfriend, Kendall Wiggins, and paid rent to Hannah Nye.
Then he moved in with his aunt and uncle in North Seattle. All during this time,
he continued to be registered to vote in Duvall. And an inquiry made to the post
office in April 2017 revealed that Roberts continued to receive mail at the Duvall
address.
Roberts'father did not give Roberts the summons and complaint. But an
attorney appeared for Roberts, reserving defenses for improper service. Roberts
did not file an answer or respond to interrogatories. Instead, after the apparent
expiration of the statutory limitation period, he moved for summary judgment,
arguing that the suit was barred by the statute of limitation because service was
not effective. The trial court granted the motion and dismissed the case. Gentry
appeals.
1 No. 77051-9-1
Gentry argues that the trial court erred in concluding that Roberts was not
properly served under RCW 4.28.080(16). She contends that service at the
Duvall house was valid. Thus, she claims we should reverse the trial court's
summary judgment dismissal of her suit.1
Summary judgment is proper where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
Hertoq v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400(1999). We engage
in the same inquiry as the trial court and consider the facts and reasonable
inferences therefrom in the light most favorable to the nonmoving party. Hertog,
138 Wn.2d at 275.
Service on a defendant may be accomplished either by serving 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(16). A house of usual abode is the "center of one's
domestic activity [such that] service left with a family member is reasonably
calculated to come to one's attention." Sheldon v. Fettig, 129 Wn.2d 601,610, .
I Gentry argues in the alternative that the evidence supports a presumption that Roberts was personally served the summons and complaint by his father, citing Scanlan v. Townsend, 181 Wn.2d 838, 336 P.3d 1155(2014). Gentry is incorrect In Scanlan, there was deposition testimony that the defendant was personally served by her father. Here, there is no evidence that Roberts was ever personally served with the summons and complaint, and Roberts denies receiving the documents. On summary judgment,"the adverse party may not rest on mere allegations in the pleadings but must set forth specific facts showing that there is a genuine issue for trial." LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299(1975). Gentry makes a mere allegation, unsupported by specific facts, that Roberts was personally served with the summons and complaint by his father. This is insufficient to create a genuine issue of fact.
2 No. 77051-9-1
919 P.2d 1209(1996)(quoting Sheldon v. Fettiq, 77 Wn. App. 775, 781, 893
P.2d 1136 (1995)).
In Sheldon, the plaintiff attempted service of process on an adult
defendant by leaving copies of the summons and complaint with her brother at
her parents' home. The defendant used her parents' address for many
purposes: her registration to vote, her car registration, insurance, and bill of sale,
and when she was cited for speeding. She also stayed in the home four or five
days each month, even while maintaining an apartment in Chicago. The court
concluded that the defendant had two places of usual abode, one at her family
home in Seattle and one in Chicago, and that her family home was the place
where she was most likely to receive notice of an impending suit. In so holding,
the court explicitly abandoned strict construction of service of process statutes in
favor of the trend toward liberal construction. Sheldon, 129 Wn.2d at 607-08.
Here, the trial court considered conflicting evidence of Roberts' center of
domestic activity. The parties dispute whether Roberts'father told the process
server that Roberts was a resident of the Duvall house. Roberts'father's
perspective on his son's residence is an indicator of domestic activity and
material to the issue of service. This is a question of fact that hinges on the
credibility of the two declarants. Because this fact must be determined by a fact
finder, summary judgment was not appropriate.
In addition, Roberts lived in no fewer than four locations between January
2014 and March 2017. He did not provide copies of lease agreements, utility
bills, letters, or other evidence of his intent to establish these residences as his
3 No. 77051-9-1
center of domestic activity. Nor did he update his voter registration when he
moved from the Duvall home.2 While there are fewer indicia of domestic activity
here than in Sheldon, the facts nevertheless raise a reasonable inference that
the Duvall home remained a center of Roberts' domestic activity at the time of
service.
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PILED COURT OF APPEALS STATE OF OW I WASHINGTON 2018 JUL 23 AM 9:11 .
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
SHANNON M. GENTRY, Individually, ) ) DIVISION ONE Appellant, ) ) No. 77051-9-1 v. ) ) KYLE E. ROBERTS, and "JANE DOE" ) UNPUBLISHED OPINION ROBERTS, and the marital community ) composed thereof, ) ) Respondent. ) ) JOVITA CARPENTER and "JOHN ) DOE" CARPENTER, and the marital ) community composed thereof, ) ) Defendants. ) FILED: July 23, 2018 )
DWYER, J. — Immediately after Shannon Gentry and Kyle Roberts were in
a vehicle collision, Roberts provided a home address in Duvall, Washington.
Three years later, Gentry filed a personal injury action against him. A process
server delivered a copy of the summons and complaint to Roberts'father at the
Duvall address. Roberts later moved for summary judgment, arguing that service
was improper because the Duvall house was not his usual abode at the time of
service. The trial court agreed and dismissed the case. Because Gentry raises
a genuine issue of material fact as to whether the Duvall house was a center of
Roberts' domestic activity, we reverse and remand for further proceedings. No. 77051-9-1
Kyle Roberts and Shannon Gentry were in an automobile collision on
August 30, 2013. At the time, Roberts lived in Duvall, Washington. Nearly three
years after the collision, Gentry filed a personal injury action against Roberts. On
September 7, 2016, Gentry's process server delivered copies of the summons
and complaint to Roberts' father at the Duvall house. According to the process
server, the father stated that Roberts was a "co-resident." But the father attests
that he said no such thing.
Roberts presented evidence that he had not lived at the Duvall house
since January 1, 2014. From November 2015 to July 2016, he lived with and
paid rent to Grant Gemza in Shoreline. From August to November 2016, he lived
in Seattle with his girlfriend, Kendall Wiggins, and paid rent to Hannah Nye.
Then he moved in with his aunt and uncle in North Seattle. All during this time,
he continued to be registered to vote in Duvall. And an inquiry made to the post
office in April 2017 revealed that Roberts continued to receive mail at the Duvall
address.
Roberts'father did not give Roberts the summons and complaint. But an
attorney appeared for Roberts, reserving defenses for improper service. Roberts
did not file an answer or respond to interrogatories. Instead, after the apparent
expiration of the statutory limitation period, he moved for summary judgment,
arguing that the suit was barred by the statute of limitation because service was
not effective. The trial court granted the motion and dismissed the case. Gentry
appeals.
1 No. 77051-9-1
Gentry argues that the trial court erred in concluding that Roberts was not
properly served under RCW 4.28.080(16). She contends that service at the
Duvall house was valid. Thus, she claims we should reverse the trial court's
summary judgment dismissal of her suit.1
Summary judgment is proper where there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.
Hertoq v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400(1999). We engage
in the same inquiry as the trial court and consider the facts and reasonable
inferences therefrom in the light most favorable to the nonmoving party. Hertog,
138 Wn.2d at 275.
Service on a defendant may be accomplished either by serving 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(16). A house of usual abode is the "center of one's
domestic activity [such that] service left with a family member is reasonably
calculated to come to one's attention." Sheldon v. Fettig, 129 Wn.2d 601,610, .
I Gentry argues in the alternative that the evidence supports a presumption that Roberts was personally served the summons and complaint by his father, citing Scanlan v. Townsend, 181 Wn.2d 838, 336 P.3d 1155(2014). Gentry is incorrect In Scanlan, there was deposition testimony that the defendant was personally served by her father. Here, there is no evidence that Roberts was ever personally served with the summons and complaint, and Roberts denies receiving the documents. On summary judgment,"the adverse party may not rest on mere allegations in the pleadings but must set forth specific facts showing that there is a genuine issue for trial." LaPlante v. State, 85 Wn.2d 154, 158, 531 P.2d 299(1975). Gentry makes a mere allegation, unsupported by specific facts, that Roberts was personally served with the summons and complaint by his father. This is insufficient to create a genuine issue of fact.
2 No. 77051-9-1
919 P.2d 1209(1996)(quoting Sheldon v. Fettiq, 77 Wn. App. 775, 781, 893
P.2d 1136 (1995)).
In Sheldon, the plaintiff attempted service of process on an adult
defendant by leaving copies of the summons and complaint with her brother at
her parents' home. The defendant used her parents' address for many
purposes: her registration to vote, her car registration, insurance, and bill of sale,
and when she was cited for speeding. She also stayed in the home four or five
days each month, even while maintaining an apartment in Chicago. The court
concluded that the defendant had two places of usual abode, one at her family
home in Seattle and one in Chicago, and that her family home was the place
where she was most likely to receive notice of an impending suit. In so holding,
the court explicitly abandoned strict construction of service of process statutes in
favor of the trend toward liberal construction. Sheldon, 129 Wn.2d at 607-08.
Here, the trial court considered conflicting evidence of Roberts' center of
domestic activity. The parties dispute whether Roberts'father told the process
server that Roberts was a resident of the Duvall house. Roberts'father's
perspective on his son's residence is an indicator of domestic activity and
material to the issue of service. This is a question of fact that hinges on the
credibility of the two declarants. Because this fact must be determined by a fact
finder, summary judgment was not appropriate.
In addition, Roberts lived in no fewer than four locations between January
2014 and March 2017. He did not provide copies of lease agreements, utility
bills, letters, or other evidence of his intent to establish these residences as his
3 No. 77051-9-1
center of domestic activity. Nor did he update his voter registration when he
moved from the Duvall home.2 While there are fewer indicia of domestic activity
here than in Sheldon, the facts nevertheless raise a reasonable inference that
the Duvall home remained a center of Roberts' domestic activity at the time of
service. And, as in Sheldon, we can infer from the evidence that Roberts would
be likely to receive notice of the suit at his parents' house given his frequent
changes in residence.
The facts of this case are distinguishable from those cases in which
service at a relative's home was deemed ineffective. In Farmer v. Davis, 161
Wn. App. 420, 250 P.3d 138(2011), service was attempted at the defendant's
mother's house, where the defendant had not lived since getting married a year
and a half before. Noting that there "was no admissible evidence that Mr. Davis
was continuing to use his old Tombstone address for any purpose," the court
affirmed dismissal of the complaint. Farmer, 161 Wn. App. at 435. Unlike the
defendant in Farmer, who established with undisputed evidence that he no
longer used his mother's address for business or legal matters, there is no
2 Roberts argues that the Internet search results showing his voter registration are inadmissible. Under RAP 9.12, we consider the evidence called to the attention of the trial court, as designated in the order on summary judgment. Here, the order on summary judgment shows that the trial court viewed and considered the Internet search results. At the hearing, counsel did not formally object to any evidence, merely noting that "there's no declarations from any of those website providers." This was insufficient to promote a ruling on the issue of admissibility, and we refuse to review an issue raised for the first time on appeal. Indeed, to do so could be unjust Had the issue been properly raised in the trial court, the judge might well have chosen to grant plaintiff a continuance to properly authenticate the challenged evidence, as an alternative to exclusion. This is why RAP 9.12 wisely requires us to consider the evidence actually before the trial court when conducting our review.
4 No. 77051-9-1
evidence here that the defendant adopted any address other than his parents'for
business or legal matters.
This case is also distinguishable from Gerean v. Martin-Joven, 108 Wn.
App. 963, 33 P.3d 427(2001). In Gerean, service of process was made to the
defendant's son-in-law at a home in Federal Way that the defendant owned. But
prior to the attempted service, the defendant and her husband had moved from
that house to one in Puyallup, leasing the Federal Way home to their daughter
and son-in-law. The defendant duly notified the post office, obtained a new
driver's license, and notified her regular creditors of her address change. The
defendant did not, however, change her voter registration or property tax billing
address. The court reasoned that, unlike in Sheldon, the defendant did not have
more than one usual abode. Rather, the evidence supported only that the
defendant and her husband maintained their own separate home in Puyallup that
was the center of their domestic activity.
Unlike the defendant in Gerean, Roberts continued to receive mail at the
Duvall house. And unlike the defendant in Gerean, who changed her driver's
license and rented out her house, Roberts has not presented evidence of his
intent to establish a new residence. The evidence instead shows frequent moves
to temporary residences, which, along with his continued receipt of mail, raises
an inference that he maintained a center of domestic activity at the Duvall house.
Viewing the evidence in the light most favorable to Gentry, the evidence
presented to the trial court raises reasonable inferences that Roberts maintained
5 No. 77051-9-1
the Duvall home as a center of domestic activity at the time of service. Only a
fact finder may resolve this dispute.
III
Roberts requests allowable costs as the substantially prevailing party
under RAP 14.2, as well as statutory attorney fees under RAP 14.3. Roberts
does not prevail on appeal, and does not cite authority under which he is entitled
to an award of attorney fees. We therefore decline to award attorney fees or
costs.
Reversed.
WE CONCUR:
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