## 20!^SEP29 ArilhOb

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON BOUCHRAAGOUR, Appellant,

v. IAN M. DALRYMPLE and JANE DOE DALRYMPLE, husband and wife, and the marital community comprised thereof, Respondents. No. 70206-8-1 DIVISION ONE UNPUBLISHED OPINION

FILED: September29, 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 summaryjudgment 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 denyingAgour's motions, but iterred ingranting summaryjudgment. We reverse and remand for furtherproceedings. FACTS On October 5, 2009, Bouchra Agour allegedly suffered injuries when her
carwas struckfrom behind by a cardriven by Ian Dalrymple.No. 70206-8-1 / 2 On January 26, 2012, Agourfiled the first of two identical lawsuits against Dalrymple. Process server Michael James made three unsuccessful attempts to
serve Dalrymple athis Seattle residence. According to James, he successfully served Dalrymple on June 7, 2012. His affidavitofservice states inpertinentpart: 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 

### paperworkwhen Inoted this was for his auto accident inOctoberof 2009 and he needed to getintouch with his insurance carrier, State Farm. He thanked me. 

### On July 23, 2012, Dalrymple answered the complaint and asserted the affirmative defense ofinsufficientservice ofprocess. 

### 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 withthe SecretaryofState.

-2-No. 70206-8-1 / 3 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 inpartasfollows:

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

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

... Iwas notphysically handed legal papers inthis matterby anyone at any time. Legal papers . . . were leftat my residence on June 7, 2012, eitherunderthe matortaped tothe 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 cutwhen he visited me, and otherwise appears to be the individual described in the "Affidavit ofService".
. . .

... 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 Iwas not you, but they would not believe me." To my understanding, Mr.Winsor III did not acceptthe papers, buttheywere leftatmy residence anyway.

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

### Dalrymple also submitted a declaration from Henry Winsor III. Winsor alleged inpart:

... On June 7, 2012, I had blonde hair which was trimmed shortin a "crewcut" style.

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. . . The process server asked ifIwas Ian Dalrymple. Itold 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." Itold him that Iwas not Ian and Iwould not accept the papers. ... Iclosed the door. He said through the doorthat he was leaving the papers at the door. I said "Fine; I am not responsibleforthem."

... I am married and live at [address] Auckland, New Zealand. Iam not related to Ian Dalrymple and Idid not live at Mr. Dalrymple's house, nor was Iresident therein, on June 7, 2012. I did not stay the night at Mr. Dalrymple's residence the night before orafterJune 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 judgmentinthe first suit. 

### On March 6, 2013, nine days before the first summaryjudgment 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 ofone suit under CR41, notconsolidation.

-4-No. 70206-8-1 / 5 On March 14, 2013, the court denied the motion to consolidate. Itnoted 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 forsummaryjudgmenton thefirst 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? Andthere was neither." 

### On March 18, 2013, the parties entered a stipulated order dismissing Agour's second, identical suitwithprejudice. 

### Agourfiled notices ofappealfrom the dismissal of herfirst lawsuitand the order denying consolidation. A commissioner of this court ruled that the order dismissing the first suit was appealable as a matter ofright and that the appeal 

### would bring up the consolidation rulingforreview. There being no need or basis for discretionary review of the order denying consolidation, the Commissioner denied discretionary reviewand dismissed thatappeal.

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DECISION 

### Agour firstcontends the court abused itsdiscretion in denying hermotions for consolidation and a continuance. There was no abuse ofdiscretion. 

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

### abuse ofdiscretion. 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 forthe delay inobtaining 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 courtwas within its discretion indenying 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). CR42(a) provides: When actions involving a common question of law or fact are pending before the court, itmay order a joint hearing or trial of any or all the matters in issue inthe actions; itmay 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 Inthis case, the motion to consolidate was filed more than four months afterthe 

### 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 sinceAgour could have simplyserved Dalrymple again in the first suit. Inthese circumstances, we cannotsaythe courtabused its discretion. 

### The remaining issue iswhetherthe court erred in dismissing Agour's first lawsuit on summaryjudgment. We note initially that when a defendant seeks dismissal for lack ofpersonal jurisdiction, the plaintiff normallybears the initial 

### burden of establishing a prima faciecaseofsufficientservice. Streeter-Dvbdahl. 157 Wn. App. 408, 412, 236 P.3d 986 (2010). Anaffidavit of service, however, 

### "is presumptivelycorrect, and the partychallenging the service of process bears the burden of showing by clear and convincing evidence that service was 

### improper." id; Leenv. Demopolis. 62Wn. 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 summaryjudgment. 

### Summary judgment is appropriate only if there is no genuine issue of materialfact and the moving party isentitledto judgment as a matter oflaw. CR 

### 56(c). Themoving party bears the initial burden ofshowing 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). Ifthe moving party satisfies thatburden, the burden shifts to the nonmoving partyto 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 inthe same inquiry as the trial courtand viewthe 

### facts in a light most favorable to the nonmoving party. Right-Price Recreation. 146Wn.2dat381. A defendant can move for summaryjudgment in one of two ways. Itcan submitits version ofthefacts and allegethere are no genuine issues underthose facts, or itcan 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 properservice,1 Dalrymple elected thefirst method ofmoving for summaryjudgment. 

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

### declaration of Henry Winsor III. Dalrymple's declaration described himselfas 42 years old, around 172 pounds, withdark brown hair. He alleged he "did not have
a crew cut on June 7, 2012." He denied receiving service and alleged that the


### 1He argued thatthe there was no issue of fact as to whethera summons was served by delivering a copy "to the defendant personally, or by leaving a 

### copy of the summons at the houseof his or her usual abodewith someperson of suitableage and discretionthen residenttherein." RCW4.28.080(15). -8-No. 70206-8-1 / 9
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 cutwhen he visited me, and otherwise appears to bethe individual described inthe 'Affidavit ofService.'" Winsor's declaration stated that he was the person James attempted to
serve. He alleged he had blonde hairand a crewcuton the service date. He did not, however, address the other physical characteristics ofthe person described in James' affidavit ofservice. He claimed he told James his name and offered to show him identification. He also claimed thatthe 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) 

### Dalrymplepresented no evidence distinguishing himself fromJames' 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 theNo. 70206-8-1/10

summons was left on the porch. Agour requested an evidentiary hearing to resolve issues offactand credibility. Viewing the evidence in a light most favorable to Agour, we conclude 

### Dalrymple did not carry his burden ofshowing the absence of a genuine issue of fact. In fact, Dalrymple's submissions didjustthe 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 similarto 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 demonstratethe absence of a material issue of fact. Thus, summaryjudgmentwas error. 

### In addition, despite being denominated as a motion for summary 

### judgment, the motionwas 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 meetthis standard. 

### In sum, the court erred in granting summaryjudgment. The continuance 

### and consolidation rulings are affirmed. The summary judgment is reversed 

### withoutprejudiceto further proceedings concerning the sufficiencyof service.

WE CONCUR: 

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