Katherine M. Forsberg v. Weston T. Griepp

l
I FILED
OCTOBER 13, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
KATHERINEM. FORSBERG, )
) No. 33742-1-111
Appellant, )
)
V. )
)
WESTON T. GRIEPP, ) UNPUBLISHED OPINION
)
Respondent. )
SIDDOWAY, J. -Katherine Forsberg appeals the summary judgment dismissal of
her personal injury action against Weston T. Griepp. The trial court determined as a
matter of law that the action became time barred without process having been effectively
served on Mr. Griepp. Ms. Forsberg argues that her timely attempts at substitute service
and service by mail, or one of them, was effective. We disagree and affirm.
FACTS AND PROCEDURAL BACKGROUND
Katherine Forsberg and Weston T. Griepp, who goes by "Taylor," 1 were in an
1 We refer to the defendant as Taylor to avoid confusing references to him and to
his father. Our shorthand reference to his father, Weston P. Griepp, will be as Mr. Griepp
Sr.
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automobile accident on February 22, 2012. On February 10, 2015, Ms. Forsberg filed a
negligence action·against Taylor in Stevens County. Approximately one week later, a
lawyer filed a notice of appearance on Taylor's behalf. A little over a month after that,
the lawyer filed Taylor's answer and affirmative defenses. Included was the defense of
inadequate service of process.
Stevens County Sheriffs Deputy Henry Stroisch had left written discovery with
Taylor's father, Weston P. Griepp, on February 11, 2015, at the same time he delivered
Ms. Forsberg's summons and complaint to Mr. Griepp Sr., who lives on Stevens Street in
Chewelah. When responses to the discovery were not forthcoming, Ms. Forsberg's
lawyer tried without success to contact Taylor's lawyer, to see when responses would be
provided. He eventually arranged a discovery conference for April 24. It was during the
discovery conference that Ms. Forsberg's lawyer learned that the discovery had not been
answered because Taylor no longer lived at the Chewelah address and did not intend to
respond unless he was properly served. Ms. Forsberg had relied for service on the
address listed in the accident report, but the accident occurred when Taylor was 19 years
old and living at his father's home.
Less than one month remained for Ms. Forsberg to effect service under RCW
4.16.170, which tolls the statute of limitations for 90 days from the filing of a complaint
subject to service being effected during that time frame.
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On April 30, Ms. Forsberg filed a motion requesting permission to serve Taylor by
mail. She argued that the evidence she offered demonstrated that she had "exhausted all
reasonable measures" to locate Taylor and that it was "apparent that [he] has either left
the State of Washington with intent to avoid service of process of the summons and
complaint in this action or is concealing himself within the State to avoid service."
Clerk's Papers (CP) at 19. The following week, the trial court entered an ex parte order
allowing Ms. Forsberg to serve Taylor by mail at his father's Chewelah address. Ms.
Forsberg's attorney mailed the summons and complaint to the Chewelah address the
same day.
On May 14, 2015, Taylor filed a timely motion for reconsideration of the order
authorizing service by mail, together with a motion for summary judgment that the
attempt to serve Taylor at his father's home was ineffective. He argued that because "the
statute of limitations has now expired ... [and] plaintiffs cannot now attempt to remedy
their failure to serve," the action should be dismissed. CP at 60. He supported his
motions with declarations from himself and his father.
Taylor stated in his declaration that four months after his accident with Ms.
Forsberg he had moved to 3311 North Lacey Street in Spokane and that he had not lived
with his parents thereafter. He stated he had not yet been personally served with the
summons and complaint, had not received a copy from his father, and had never
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attempted to avoid service. He provided a copy of his driver's license, issued on
November 20, 2013, which reflected the address on Lacey Street in Spokane.
Mr. Griepp Sr.'s declaration similarly stated that his son had moved to Spokane in
June 2012 and had not lived at the Chewelah home since. He also stated that when
Deputy Stroisch attempted to serve the legal papers at the Chewelah home,
I told the officer that I was not Weston T. Griepp and that he no longer
lived here, but the officer did not take the papers back, nor did he ask
where my son currently lived. I have not given those papers to my son.
CP at 61-62. Deputy Stroisch would later dispute this account in a supplemental
declaration.
Ms. Forsberg responded and opposed Taylor's motion, attaching supplemental
evidence that she argued supported her efforts to serve Taylor, including evidence of
Internet and social media searches, correspondence with Taylor's former employer, and
the declaration of a second process server, Troy Daniels.
Taylor moved to strike Ms. Forsberg's supplemental evidence as hearsay and as
not having been before the judge when he entered the order allowing service by mail.
Without ruling on the motion to strike, the court reconsidered the order to serve by
mail, found that it had been entered in error, and granted summary judgment, dismissing
Ms. Forsberg's claims with prejudice.
Ms. Forsberg then filed successive motions, first for reconsideration, and later, to
vacate the order granting summary judgment. She filed additional supplemental evidence
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in support of her motions. Taylor again moved to strike some of the evidence. The trial
court granted Taylor's motion to strike and denied Ms. Forsberg's motion to vacate.
Ms. Forsberg has appealed the order granting summary judgment and the order
denying her motion for reconsideration. 2
ANALYSIS
Ms. Forsberg challenges the dismissal of her complaint, arguing that Deputy
Stroisch's delivery of the summons and complaint was effective substitute service and,
alternatively, that the trial court erred when it reconsidered its order authorizing service
by mail.
An order granting summary judgment is reviewed de novo, "considering the
evidence and all reasonable inferences from the evidence in the light most favorable to
the nonmoving party." Keckv. Collins, 184 Wn.2d 358,370,357 P.3d 1080 (2015).
Summary judgment is appropriate 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).
2 Ms. Forsberg also argues in her opening brief that the trial court erred when it
denied her motion to vacate its order granting summary judgment.
This court accepted review of the order granting summary judgment on September
10, 2015, and accepted review of the order denying reconsideration on September 18.
The trial court denied Ms. Forsberg's motion to vacate nearly a month later, on October
13, 2015. Ms. Forsberg never amended her notice of appeal to include the order on her
motion to vacate, nor did she file a new appeal. Because the decision on the motion to
vacate did not affect earlier-appealed orders and was not entered before we accepted
review, an appeal of that decision is not before us. See RAP 7.2(e); 2.4(b).
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I. The attempted service at Mr. Griepp 's Chewelah home was not
effective substitute service
"Substitute service of process is effective when ( 1) a copy of the summons is left
at defendant's house of usual abode, (2) with some person of suitable age and discretion,
(3) then resident therein." Sheldon v. Fettig, 129 Wn.2d 601, 607, 919 P.2d 1209 (1996)
(citing former RCW 4.28.080(15) (1991)). Taylor does not dispute that Deputy Stroisch
left a copy of the summons with his father, a person of suitable age and discretion, at the
home at which his father then resided. At issue is whether Mr. Griepp Sr.'s Chewelah
home was Taylor's house of usual abode. Ms. Forsberg contends that if "usual abode" is
liberally construed to effectuate service and uphold jurisdiction as required by Sheldon,
then service on Mr. Griepp Sr. was sufficient.
In Sheldon, the Washington Supreme Court held that the statutory provisions
permitting substitute service must "be liberally construed to effectuate service and uphold
jurisdiction of the court." Id. at 609. Applying a liberal construction, the court noted that
though "there is no hard and fast definition of the term 'house of usual abode,"' the term
"' must be taken to mean such center of one's domestic activity that service left with a
family member is reasonably calculated to come to one's attention within the statutory
period for defendant to appear.'" Id. at 610 (quoting Sheldon v. Fettig, 77 Wn. App. 775,
781,893 P.2d 1136 (1995), aff'd, 129 Wn.2d 601 (1996)). Notwithstanding Taylor's and
his father's affidavits that Taylor moved to Spokane in June 2012, Ms. Forsberg argues
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that the Chewelah home could be a house of usual abode for Taylor under this liberal
standard.
The defendant in Sheldon had moved from her parents' Seattle home to Chicago
for a flight attendant training program eight months before the plaintiff attempted to serve
her by leaving a summons and complaint with her parents. But she had continued to use
her parents' address as her residence for purposes of voter registration, car registration,
title to her car, car insurance, and had provided it as her address when cited for speeding.
Id. at 610. She also returned to her parents' home frequently when not on flight
assignments, and was even there once when the plaintiffs attorney called. Our Supreme
Court held that while "most people generally maintain only one house of usual abode,"
the defendant in Sheldon could fairly be said to maintain two centers of domestic activity,
and therefore, two usual abodes for the purposes of service. Id. at 610-12.
In this court's post-Sheldon decision in Farmer v. Davis, 161 Wn. App. 420,250
P.3d 138 (2011), the defendant-like Ms. Forsberg-wanted us to extend the result in
Sheldon to any case in which a teenage or adult child lived with a parent at the time of an
automobile accident and a plaintiff later relies on the accident report and delivers process
to a parent at the parental address. But as we held in Farmer, those facts, standing alone,
do not fall within Sheldon's concept of a second abode for process purposes. This case is
like Farmer, in that Ms. Forsberg offered no evidence that Taylor made continued use of
his father's address as his residence address, or that he had ever returned to live or stay
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for any extended period at his father's home. 3 Viewing the evidence in the light most
favorable to Ms. Forsberg and liberally construing RCW 4.28.080(15), she did not
demonstrate any genuine issue that the Chewelah home was a second house of usual
abode for Taylor at the time of the attempted service.
II. The trial court did not abuse its discretion in reconsidering its
authorization of service by mail
CR 59(a) lists the bases on which a party may move for reconsideration. In asking
the trial court to reconsider its order authorizing service by mail, Taylor relied on two:
"That there is no evidence or reasonable inference from the evidence to justify ... the
decision, or that it is contrary to law," CR 59(a)(7); and, an "[e]rror in law occurring at
the trial and objected to at the time by the party making the application." CR 59(a)(8).
A trial court is not required to reconsider its decisions and we review its decision
whether to reconsider for abuse of discretion. CR 59(a) ("[M]otions may be granted for
any one of the following causes ... ") (emphasis added); Go2Net, Inc. v. CI Host, Inc.,
3
After summary judgment was granted and the case was dismissed, and after Ms.
Forsberg's motion for reconsideration was fully briefed, she submitted a further
supplemental declaration from a paralegal attaching evidence that ( 1) Taylor had
provided the Department of Licensing (DOL) with a "mailing address" that was a post
office box in Chewelah, and (2) the Chewelah postmaster reported that the "physical
address" associated with the Chewelah post office box was Mr. Griepp Sr.'s Stevens
Street address. CP at 152-57. More importantly, the DOL had confirmed to the paralegal
that Taylor's residence address was a Spokane address. In Sheldon, it was the
defendant's repeated use of her parents' address as her residence address and the fact that
she periodically lived in their home that supported a finding that it was a second usual
house of abode.
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115 Wn. App. 73, 88, 60 P.3d 1245 (2003). Where, as here, reconsideration is sought on
the basis that the original decision was legally erroneous, we review the legal issues de
novo.
"Statutes authorizing service by means other than personal service, i.e.,
constructive and substituted service, require strict compliance." Painter v. Olney, 37 Wn.
App. 424, 427, 680 P.2d 1066 (1984). RCW 4.28.100(2) sets out the conditions required
before service by mail may be authorized. They were summarized by Pascua v. Heil,
126 Wn. App. 520, 526, 108 P.3d 1253 (2005):
Substitute service by mail ... is permissible when the plaintiff sets forth the
following facts: (1) that the defendant could not be found in Washington
after a diligent search; (2) that the defendant was a resident of Washington;
and (3) that the defendant had either left the state or concealed himself
within it, with intent to defraud creditors or avoid service of process.
A party that seeks authorization to serve process by mail must clearly show all of the
conditions required. Jones v. Stebbins, 122 Wn.2d 471, 482, 860 P.2d 1009 (1993).
In the interest of simplicity, we focus on Mr. Forsberg's burden to demonstrate
that Taylor had left the state or concealed himself within it, with intent to defraud
creditors or avoid service of process. Her evidence of that condition is most clearly
lacking. By focusing on this essential condition, we also avoid the need to address most
of the parties' disputes over whether the court should have considered supplemental or
otherwise objected-to evidence.
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Affidavits offered in support of a motion to serve process by mail need not clearly
prove a defendant's intent to avoid service but they must clearly articulate facts that raise
an inference of intent to avoid service. Boes v. Bisiar, 122 Wn. App. 569, 577, 94 P.3d
975 (2004). A plaintiff "must produce the specific facts which support the conclusions
required by the statute." Pascua, 126 Wn. App. at 527.
Ms. Forsberg relies upon evidence that her second process server, Mr. Daniels,
was told that the Griepp family was in California. More specifically, in late April 2015,
after the problem with Deputy Stroisch's service came to Ms. Forsberg's lawyer's
attention, Mr. Daniels was hired to serve Taylor at a second Chewelah address that had
been discovered. But Mr. Daniels was familiar with the Griepp family, mistakenly
assumed that "Weston T. Griepp" was Mr. Griepp Sr., and went to where he knew Mr.
Griepp Sr. lived: Stevens Street; the same address where Deputy Stroisch had attempted
service. It was after no one responded on his third attempt at service that, according to
Mr. Daniels's affidavit, "a neighbor came out of the house and told me that the family
was in California." CP at 103.
Mr. Daniels's report of the neighbors' statement is hearsay; it does not support the
conclusion that the neighbor's reference to "the family" included Taylor; and even if
Taylor had been in California on April 29, that fact would be insufficient without more,
to raise an inference that he was trying to avoid service.
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Ms. Forsberg also relies on evidence that 12 days before the statute of limitations
ran, Taylor changed his address with the DOL from one address in Spokane ( on Lacey
Street) to a more current address in Spokane (on 7th Avenue). Conceivably, it was while
cooperating with his lawyer's preparation of a motion challenging the sufficiency of
service that Taylor realized he should update his address with the DOL. Or perhaps
Taylor had only recently moved to the 7th Avenue address. Whatever the explanation, by
updating his address Taylor increased, not decreased, the prospect that he would be
served. Ms. Forsberg offers no evidence or argument explaining how Taylor's action can
be reasonably construed as evidence of intent to evade service.
The fact that Taylor did not authorize his lawyer to accept service or disclose his
address does not raise an inference of intent to avoid service. "Far from an obligation to
assist service of process, this court has held that a defendant's only duty is to accept
service when validly tendered and not to evade service." Pascua, 126 Wn. App. at 532.
Similarly, Taylor's lack of personal information online is insufficient, because a "lack of
a 'public recorded persona,' without more," does not create an inference of intent to
avoid service. Bruff v. Main, 87 Wn. App. 609, 613, 943 P.2d 295 (1997).
Because Ms. Forsberg did not present specific facts supporting Taylor's intent to
avoid service-an essential condition to service by mail-the trial court's original order
authorizing such service was not supported by the record. The court did not abuse its
discretion in deciding to entertain the motion for reconsideration in order to correct the
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error. Given insufficient service prior to the running of the limitations period, summary
judgment was appropriate.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
7J;/Low~, »= -
Siddoway, J.
WE CONCUR:
Fe``l(f.
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