Peggi Northwick v. Andrew Long , 192 Wash. App. 256 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
PEGGI NORTHWICK, No. 72517-3-1
Respondent, DIVISION ONE
UNPUBLISHED OPINION
ANDREW LONG,
Petitioner. FILED: November 30, 2015
Leach, J. — A commissioner of this court granted Andrew Long's request
for discretionary review of the trial court's order denying his motion to dismiss for
insufficient service of process. Long challenges the trial court's denial of his
request for an evidentiary hearing, its consideration of the process server's
testimony, and the denial of his motion. The trial court did not abuse its
discretion by denying Long's untimely request for an evidentiary hearing or by
considering the challenged evidence. Because Northwick presented prima facie
proof of proper service and Long did not present clear and convincing evidence
to show otherwise, we affirm the trial court and remand for further proceedings.
FACTS
On March 6, 2014, Peggi Northwick started this lawsuit by filing a
summons and complaint for damages against Andrew Long in King County
Superior Court. The complaint alleged that Long was the at-fault driver in a car
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collision. Northwick served Long by leaving copies of the summons and
complaint with his father at a Snohomish, Washington, address. Records show
Long's car registered to this address.
Long filed a motion to dismiss, claiming insufficient service of process.
Long supported his motion with a declaration from his father, Hoeun Long.1 Long
did not provide his own declaration. In Hoeun's declaration, he said that Andrew
moved out some time before December 25, 2013. Hoeun also said that a man
came to his house on March 8, 2014, and that Hoeun told the man that Andrew
was his son. Hoeun said that the man did not ask if Andrew lived with him at that
time. Hoeun also stated that the man did not request, nor did Hoeun offer to tell
him, Andrew's current address. Hoeun also said in his declaration that Andrew
had his own car in his name, did not receive mail at the Snohomish house, and
was working and going to school in Texas.
Northwick deposed her process server, Randy Bennett, on July 21, 2014.
Bennett testified that on March 8, 2014, he went to Andrew's last known address,
in Snohomish, Washington, to serve the summons and complaint. Bennett
spoke to Hoeun at the door. Hoeun identified himself as Andrew's father and
said Andrew lived there. When Bennett told Hoeun that he had a delivery for
Andrew, Hoeun told Bennett that Andrew was not home but would be home very
1 Because the parties share the same last name, we refer to them by their
first names for clarity. We intend no disrespect.
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late that night. Bennett explained to Hoeun that he was dropping off legal
documents, and Hoeun agreed to deliver them to Andrew. According to Bennett,
Hoeun then again confirmed that Andrew lived at the address.
Bennett left the house, stopped approximately a half mile away, and wrote
all of his notes about the conversation on his messenger slip. The declaration of
service was filed with the clerk of the trial court on March 24, 2014. At his
deposition, Bennett testified that getting multiple confirmations of the residence of
the defendant from a coresident was his typical practice. Bennett also testified
about his review of Andrew's vehicle identification from the Washington
Department of Licensing (DOL) database, a TransUnion Locate report, and a
U.S. Postal Service trace which confirmed that Andrew resided at the Snohomish
address as late as May 8, 2014.
Hoeun says he did not give the documents to Andrew. Andrew's defense
counsel disclosed Andrew's Texas address in a letter dated July 8, 2014,
responding to efforts from Northwick's counsel to depose Andrew.
Andrew filed a motion to dismiss on June 18, 2014. After hearing oral
argument, the trial court denied the motion. On September 2, 2014, the trial
court denied Andrew's motion for reconsideration and his request for an
evidentiary hearing. Andrew asked for discretionary review.
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STANDARD OF REVIEW
We review the sufficiency of service of process de novo.2 As a
consequence, we also review evidentiary rulings on admissibility made in
connection with this issue de novo.3 We review for abuse of discretion a trial
court's denial of a request for an evidentiary hearing.4 A trial court abuses its
discretion when it makes a manifestly unreasonable decision or bases it on
untenable grounds.5
ANALYSIS
Andrew makes three claims: (1) that he was not properly served, (2) that
the trial court should not have considered parts of Bennett's deposition
testimony, and (3) that the trial court should have conducted an evidentiary
hearing before ruling on his motion.
Service of Process
Andrew first challenges the sufficiency of service of process. A plaintiff
may serve process personally on a defendant or by leaving a copy of the
summons at the defendant's usual abode with a person of suitable age and
2 Scanlan v. Townsend. 181 Wash. 2d 838, 847, 336 P.3d 115 (2014).
3 Folsom v. Burger King, 135 Wash. 2d 658, 663, 958 P.2d 301 (1998); Keck
v. Collins Wn.2d , 357 P.3d 1080, 1085 (2015).
4 Woodruff v. Spence, 76 Wash. App. 207, 210, 883 P.2d 936 (1994).
5 In re Pet, of Duncan. 167 Wash. 2d 398, 402, 219 P.3d 666 (2009).
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discretion who resides there.6 Proper service of the summons and complaint
provides the court with personal jurisdiction over a party.7
When a defendant challenges service of process, the plaintiff has the
initial burden of proof to establish a prima facie case of proper service.8 A
plaintiff can establish a prima facie case by providing a declaration of a process
server, regular in form and substance.9 Then the challenging party must show by
clear and convincing evidence that service was improper.10
Here, the parties agree that Bennett did not serve Andrew with a copy of
the summons and complaint. Therefore, Northwick must show that Bennett
completed proper substitute service by serving at Andrew's usual place of abode
a person of suitable age and discretion who resides at that address.11 The term
"usual place of abode" means '"such center of one's domestic activity that service
left with a family member is reasonably calculated to come to one's attention
6 RCW 4.28.080(15).
7 Woodruff, 76 Wash. App. at 209-10 (citing Lee v. W. Processing Co., 35
Wash. App. 466, 469, 667 P.2d 638 (1983)).
8 Gross v. Sunding, 139 Wash. App. 54, 60, 161 P.3d 380 (2007) (citing
Woodruff, 76 Wash. App. at 209-10).
9 State ex rel. Couohlin v. Jenkins, 102 Wash. App. 60, 65, 7 P.3d 818
(2000).
10 Woodruff, 76 Wash. App. at 210.
11 Streeter-Dvbdahl v. Nguvet Huynh, 157 Wash. App. 408, 412-13, 236
P.3d 986 (2010).
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within the statutory period for [the] defendant to appear.'"12 The parties dispute
the location of Andrew's abode at the time Northwick attempted service.
Andrew agrees Northwick met her initial prima facie burden with Bennett's
declaration of service but contends Hoeun's declaration demonstrated it was
"highly probable" that Andrew did not reside at the Snohomish address, rebutting
any presumption created by the declaration of service.13 Andrew argues that the
burden then shifted back to Northwick to ultimately demonstrate proper service
by a preponderance of the evidence that Andrew resided at the Snohomish
address. Northwick responds that Andrew did not produce clear and convincing
evidence that proper service did not occur. As a result, Andrew failed to satisfy
his burden under the burden-shifting analysis.
To support her position, Northwick cites cases where the defendant failed
to produce clear and convincing evidence, including no credible evidence of a
different place of usual abode. In State ex rel. Couqhlin v. Jenkins,14 Division
Two of this court concluded that affidavits from the defendant's mother and ex-
wife, stating that the defendant did not live at the place where substitute service
occurred, did not amount to clear and convincing evidence of improper service of
process when weighed against evidence of mail to and from that address which
12 Streeter-Dvbdahl, 157 Wash. App. at 413 (alteration in original) (internal
quotation marks omitted) (quoting Sheldon v. Fettiq, 129 Wash. 2d 601, 610, 919
P.2d 1209 (1996)).
13 In re Pet, of LaBelle, 107 Wash. 2d 196, 209, 728 P.2d 138 (1986).
14 102 Wash. App. 60, 64-65, 7 P.3d 818 (2000).
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demonstrated he did reside there. And in Woodruff v. Spence,15 the court held
that the defendant failed to establish that service was insufficient, even though
the defendant did establish he was not at the residence on the date of service
and denied ever actually receiving the documents served.
Northwick also contrasts Andrew's evidence with evidence a court has
found clear and convincing. In Gross v. Evert-Rosenberg,16 the court held that
for purposes of substitute service, a house owned by the defendant but leased to
her daughter and son-in-law was not the defendant's house of usual abode
because the defendant produced evidence that she had established a new
address by notifying the post office, obtaining a new driver's license, and
informing her regular creditors. Andrew did not produce any similar evidence.
Andrew contends that Northwick's evidence, the declaration and
deposition of Bennett, and the information from the subsequent investigation
merely show that Andrew did not promptly update his contact information with the
post office and DOL. Andrew asserts that these reports failed to demonstrate
that he was actually living at the Snohomish address on March 8, 2014. Andrew
uses two Washington cases to support his argument that this type of evidence is
insufficient to establish that a particular home is a defendant's abode. In
Streeter-Dvbdahl v. Nguvet Huvnh,17 this court noted, "[T]he use of a particular
15 88 Wash. App. 565, 570-71, 945 P.2d 745 (1997).
16 85 Wash. App. 539, 541, 543, 933 P.2d 439 (1997).
17 157 Wash. App. 408, 414, 236 P.3d 986 (2008).
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address for a limited purpose is not a critical factor in determining a center of
domestic activity." Similarly in Vukich v. Anderson.18 the Division Three of this
court held that the defendant's unrefuted evidence was clear and convincing
when he presented evidence of a California bank account, home purchase,
lease, and tenant's statement showing he resided elsewhere.
Northwick distinguishes these cases. Northwick points out that in cases in
which the court found clear and convincing evidence of improper service, the
defendant, unlike Andrew, presented substantial evidence that would have been
available to a reasonably diligent plaintiff.19
We agree with Northwick. Northwick, through a registered process server,
served Andrew within the statutory period at his last known address. Although
Andrew presented a declaration from his father stating that Andrew had not lived
at the Snohomish address since December 2013, he did not present his own
declaration. Northwick responded with evidence challenging Hoeun's credibility:
evidence that Hoeun told the process server that Andrew would be home later
that same evening and that Andrew lived at the address. Northwick also
presented evidence that Andrew's address on file with the post office and the
18 97 Wash. App. 684, 690-91, 985 P.2d 952 (1999).
19 Vukich, 97 Wash. App. at 690-91 (defendant presented unrefuted
evidence of other residence included a lease, tenant's statement, California bank
account, California home purchase, and mail forwarding); Streeter-Dvbdahl, 157
Wash. App. at 411-12 (defendant's evidence of other residence included property
records showing she purchased a different residence almost eight months before
service was attempted at the old address).
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DOL at the time of service was the Snohomish address. Andrew produced no
similar evidence for a different address. He provided no documentation relating
to housing, banking, and other activities highly probative of domestic activity
linking him to a different address.20 When a party fails to produce relevant
evidence within its control without satisfactory explanation, the trial court is
permitted to draw the inference that the evidence would be unfavorable to the
nonproducing party.21
We conclude that Andrew failed to prove by clear and convincing evidence
that service was improper.
Hearsay
Andrew next asserts that the trial court improperly relied on Bennett's
testimony about his conversation with Hoeun because it constituted inadmissible
hearsay that the trial court should not have considered.
"'Hearsay' is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted."22 An error in admitting evidence that does not prejudice the
defendant is not grounds for reversal.23 "[Ejrror is not prejudicial unless, within
20 Evert-Rosenberg, 85 Wash. App. at 543; Streeter-Dvbdahl, 157 Wash. App.
at 414; Vukich, 97 Wash. App. at 690-91.
21 Lvnott v. Nat'l Union Fire Ins. Co., 123 Wash. 2d 678, 689, 871 P.2d 146
(1994).
22 ER 801(c).
23 State v. Cunningham, 93 Wash. 2d 823, 831, 613 P.2d 1139 (1980).
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reasonable probabilities, the outcome of the trial would have been materially
affected had the error not occurred."24
Although the trial court indicated in its ruling that it was not relying on
Bennett's statements in the deposition about Hoeun for the truth they asserted,
Andrew contends that in making credibility determinations, the trial judge had to
rely on the truth of Bennett's statements. Andrew analogizes these statements to
those in Enslev v. Mollmann.25 In that case, this court concluded that portions of
a deposition, in which a witness said a bartender told him that the defendant had
glassy eyes and should not be served, were inadmissible hearsay.26
But in Enslev, the bartender's statements were being offered to prove that
the defendant showed obvious signs of intoxication. However, here, Hoeun's
statements were not offered to prove the truth of the matter asserted. Hoeun's
statements were used to show their effect on Bennett's reasoning. Bennett told
Hoeun that he had a delivery for Andrew; Hoeun said that Andrew would be
home later that evening and confirmed, more than once, that he lived there with
Andrew. Northwick did not offer Bennett's testimony about Hoeun's statements
to prove that Andrew was returning that night, or that Hoeun lived there with
Andrew, but to prove the effect that it had on the listener: that Bennett "didn't
24 State v. Tharp, 96 Wash. 2d 591, 599, 637 P.2d 961 (1981); accord State
v. Halstien, 122 Wash. 2d 109, 127, 857 P.2d 270 (1993).
25 155 Wash. App. 744, 230 P.3d 599 (2010).
26 Enslev, 155 Wash. App. at 748, 751 -55.
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need to ask his address because [Hoeun] said he lived there and said he would
be back that night." In his deposition, Bennett testified that had Hoeun said
Andrew moved away, Bennett would have asked for another address.
Also, Hoeun denied that Bennett even asked if Andrew resided at the
Snohomish address. In evaluating Hoeun's credibility, the court could consider
which witness's version of the conversation comported with ordinary human
experience and conclude that an experienced process server would likely ask if a
person resided at an address before leaving process there. Thus, we conclude
that Bennett's statements about his conversation with Hoeun were not hearsay
because the statements were not offered for the truth of the matter they asserted.
Evidentiary Hearing
Andrew contends that the trial court abused its discretion when it weighed
credibility without holding an evidentiary hearing when presented with a
legitimate conflict in the evidence.
Andrew argues that the trial court unfairly compared Hoeun's declaration
to Bennett's deposition because Hoeun "could not have anticipated the manner
in which his declaration would be questioned." Andrew asserts that because the
trial court had to make a credibility determination between Hoeun and Bennett, it
must conduct a fact-finding hearing, and failing to do so was an abuse of
discretion.
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Northwick asserts that the trial court properly weighed the evidence.
Additionally, Northwick points out that Andrew's counsel had the opportunity to
cross-examine Bennett at the deposition, whereas Northwick could not cross-
examine Hoeun. Andrew replies that the trial court abused its discretion when it
relied on the "subjective beliefs" of Bennett instead of holding an evidentiary
hearing. Additionally, Andrew argues that the court, in acting as the fact-finder
on the issue of service, needed to hear the testimony of the witnesses to properly
weigh credibility and resolve disputed facts.27
The trial court, in its discretion, may direct that an issue raised by motion
be heard on oral testimony if needed to make a just determination of the
outcome.28 The party challenging the trial court's decision not to conduct a
hearing must make a clear showing of abuse of discretion.29 In some
circumstances, a trial court may abuse its discretion by failing to hold an
evidentiary hearing.30
Although the trial court could have held an evidentiary hearing with live
testimony, the trial court had discretion not to do so. In Woodruff. Division Three
of this court reversed the judgment of the trial court and remanded the case for
27 State v. Walton. 64 Wash. App. 410, 415-16, 824 P.2d 533 (1992).
28 Woodruff, 76 Wash. App. at 210; CR 43(e)(1).
29 Farmer v. Davis, 161 Wash. App. 420, 430, 250 P.3d 138 (2011) (citing jn
re Pet, of Schuoler, 106 Wash. 2d 500, 512, 723 P.2d 1103(1986)).
30 Woodruff, 76 Wash. App. at 210.
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an evidentiary hearing on the issue of service.31 The defendant filed an affidavit
stating that he was not at his residence on the day of the alleged service.32 The
defendant also provided affidavits from two other individuals who were at the
address that day and said they did not see a process server.33 The court found
that the defendant's affidavits presented an issue of fact that could be resolved
only by determining the credibility of the witnesses.34
Unlike in Woodruff, where the defendant presented three sworn
documents attesting to the defendant's whereabouts, Andrew did not present his
declaration and relied exclusively on one from his father. More significantly,
unlike Woodruff, Andrew had the opportunity to cross-examine the plaintiffs
primary witness, Bennett, and present any weakness in his testimony to the
court. He did not challenge the veracity of Northwick's documentary evidence.
He fails to show how the lack of an evidentiary hearing prejudiced him or was
needed by the trial court to evaluate the credibility of the two primary witnesses.
Andrew completely controlled the evidence produced by Hoeun and had a full
opportunity to discover and test Bennett's testimony.
We also find important the timing of Andrew's request. Andrew did not
ask for an evidentiary hearing until after the trial court ruled against him.
31 Woodruff, 76 Wn. App. at 210.
32 Woodruff, 76 Wn. App. at 209.
33 Woodruff, 76 Wn. App. at 209-10.
34 Woodruff, 76 Wn. App. at 210.
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NO. 72517-3-1/14
Apparently, Andrew thought the trial court record was adequate until it did not
produce the result he desired. Under the facts of this case, the trial court did not
abuse its discretion by not holding an evidentiary hearing.
CONCLUSION
Because Northwick proved her prima facie case and Andrew did not
demonstrate by clear and convincing evidence that service was improper, the
trial court properly denied the motion to dismiss. The trial court appropriately
considered Bennett's statements about his conversation with Hoeun because
Northwick did not offer them to prove the truth of the matter asserted. Because
the trial court had a sufficient record to evaluate witness credibility, Andrew
cannot show prejudice from the lack of an evidentiary hearing, and Andrew
waited too long to request one. The trial court did not abuse its discretion by
denying his untimely request. Thus, we affirm the trial court and remand for
further proceedings.
M~J
WE CONCUR:
T>'"M'v i ^ W-A f aT .
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