Mary Butler v. Lori Frank Joy, et al.

SCHULTHEIS, J. -- Mary Butler filed suit pro se against Dr. Lori Frank
Joy for damages due to negligent medical care. The summons was never
properly served. Dr. Joy filed a notice of appearance and moved for
summary judgment dismissal within a month of the filing of the complaint.
This motion did not mention the defect in service of process. Several
months later, after the first motion for summary judgment was voluntarily
dismissed, Dr. Joy again moved for summary judgment, this time based on
insufficient service of process and expiration of the statute of
limitations. Ms. Butler retained new counsel one day before the hearing on
the motion. The trial court denied Ms. Butler's request for a continuance
and granted Dr. Joy's motion, dismissing the complaint.

On appeal, Ms. Butler contends Dr. Joy waived the defense of
insufficient service of process because she did not include that defense in
the first motion for summary judgment. She also contends the trial court
erred in refusing to grant a continuance. Because we find that Dr. Joy
waived the issue of insufficient service of process, we reverse.

Facts
According to Ms. Butler's complaint, she reported to Valley Hospital
and Medical Center on June 19, 1998 for an induced labor. During delivery,
Ms. Butler's obstetrician, Dr. Joy, decided to install a catheter to drain
Ms. Butler's bladder. The catheter fell on the floor. Dr. Joy picked it
up and inserted it into Ms. Butler's urethra. Within eight hours, Ms.
Butler was running a high fever. Dr. Joy and the nurses assumed Ms. Butler
was suffering postpartum syndrome and released her from the hospital.
While at home, Ms. Butler continued to suffer from fevers and chills and
consulted a nurse friend. When the friend noted that Ms. Butler's
temperature was 104 degrees, she called Dr. Joy, who readmitted Ms. Butler
only two hours after she had been released from the hospital.
After three days of treatment, Ms. Butler was informed that she had
contracted E. coli bacteria. As a result of this infection, Ms. Butler
could not breast feed her baby, had to drop out of school, and developed
intolerance to dairy products and most fruits. She continues to suffer
digestive problems.

On the basis of the above facts, Ms. Butler filed suit pro se for
medical malpractice and negligence against Dr. Joy and Valley Hospital on
June 18, 2001. The process server served the summons and complaint on Dr.
Joy's office receptionist that same day and filed the return of service two
days later. On June 21, Dr. Joy's attorney filed a notice of appearance.
About three weeks later, Dr. Joy filed a motion for summary judgment
dismissal, contending that Ms. Butler's complaint presented no issue of
fact as to negligence, liability, or causation. The hearing on the summary
judgment motion was continued twice: first, in August, on Ms. Butler's pro
se motion; and second, in September, when Ms. Butler's recently retained
counsel requested a continuance so he could prepare a response.
Ultimately, the hearing was set for October 26. The 90-day period for
perfecting service had expired on September 16. RCW 4.16.170.

On October 16, 2001, Dr. Joy and Valley Hospital agreed to strike the
summary judgment motion in order to allow the parties to take depositions.
(This document is not in the record.) In a stipulated order filed in
November, Valley Hospital was dismissed from the action. (This document is
not in the record either.) Depositions were taken and Dr. Joy filed an
answer and affirmative defenses on December 6. One of the affirmative
defenses alleged insufficiency of process and/or insufficiency of service
of process.

Ms. Butler's counsel withdrew from representation in early January
2002. Dr. Joy filed a new motion for summary judgment dismissal on January
16, 2002. She alleged insufficient service of process and expiration of
the statute of limitations. The hearing on the motion was set for February
22. On the day before the hearing, attorney Uche Umuolo filed a notice of
appearance as Ms. Butler's counsel of record. Mr. Umuolo appeared at the
hearing the next day and requested a continuance for time to prepare a
response. The trial court denied the motion and ruled for Dr. Joy,
dismissing the complaint.

Ms. Butler timely appealed. Dr. Joy's motion on the merits to affirm
was denied by a commissioner of this court, who found that the issues were
not so controlled by settled law as to warrant disposition on the motion
docket.

Insufficient Service of Process
In our review of this summary judgment, we view all facts and
reasonable inferences from the facts in the light most favorable to Ms.
Butler. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).
Summary judgment was proper if there was no genuine issue of material fact
and Dr. Joy was entitled to judgment as a matter of law. Id. No facts are
at issue here; consequently we confine our review to questions of law,
reviewed de novo. Clark v. Falling, 92 Wn. App. 805, 808-09, 965 P.2d 644
(1998).

The dispositive issue on appeal is whether Dr. Joy waived the
affirmative defense of insufficient service of process. Ms. Butler
contends Dr. Joy waived all defenses that were not presented in her first
motion for summary judgment, citing CR 12(h). Dr. Joy notes that CR 12(b)
allows the defense of insufficient service of process to be asserted in
either a motion or a responsive pleading. Because she set forth this
defense in her answer filed in December 2001, she argues, the defense was
not waived for the purposes of CR 12. Both parties assume that the waiver
provisions of CR 12(g) and CR 12(h) control here. They do not.

CR 12(b) provides that every defense must be asserted in the
responsive pleading, except that certain defenses may also be asserted by
motion at the option of the pleader. Both 'insufficiency of service of
process' (CR 12(b)(5)) and 'failure to state a claim upon which relief can
be granted' (CR 12(b)(6)) are defenses that may be asserted either in a
responsive pleading or in a motion. When a motion under CR 12 is made, all
defenses then available to the movant must be joined in the motion. CR
12(g). The defense of insufficient service of process is waived if it is
omitted from a motion described in CR 12(g) or if it is not made by motion
under this rule nor included in a responsive pleading. CR 12(h).

Ms. Butler contends Dr. Joy's July 2001 motion for summary judgment
was in effect a CR 12 motion. She further contends that Dr. Joy's failure
to join the defense of insufficient service of process in the July 2001
summary judgment motion waived the defense pursuant to CR 12(h). However,
a motion for summary judgment under CR 56 is not a CR 12 motion. King v.
Snohomish County, 146 Wn.2d 420, 426-27, 47 P.3d 563 (2002); French v.
Gabriel, 116 Wn.2d 584, 592 n.5, 806 P.2d 1234 (1991). Dr. Joy's July 2001
motion is clearly grounded in CR 56. Consequently, Dr. Joy was not
required to raise the defense of insufficient service to avoid waiver under
CR 12(h). King, 146 Wn.2d at 427; French, 116 Wn.2d at 592 n.5 (noting
that the language of CR 12(g) and (h) expressly limits those provisions to
motions brought under CR 12(b)).

The analysis does not end here, however. Washington recognizes that
in certain cases the common law doctrine of waiver will preclude assertion
of insufficient service of process. Lybbert, 141 Wn.2d at 38. If the
defendant's assertion of the defense is inconsistent with his or her
previous behavior, or if defendant's counsel has been dilatory in asserting
the defense, insufficient service may be considered waived as a matter of
law. King, 146 Wn.2d at 424; Lybbert, 141 Wn.2d at 38-39. As noted in
King, '{t}he doctrine is designed to prevent a defendant from ambushing a
plaintiff during litigation either through delay in asserting a defense or
misdirecting the plaintiff away from a defense for tactical advantage.'
146 Wn.2d at 424 (citing Lybbert, 141 Wn.2d at 40). Because there are no
material facts in dispute here, it is appropriate for this court to apply
the doctrine of waiver. Lybbert, 141 Wn.2d at 40. The analysis in King is
instructive.

In King, a young boy was injured in a county park. His parents filed
a complaint in the county superior court within three years after the
accident. They inadvertently failed to comply with the county's notice
claim provisions. One month after the complaint was filed, the county
answered and raised 11 affirmative defenses, including claim filing. King,
146 Wn.2d at 423. What followed were 45 months of litigation and
discovery, with each party moving for summary judgment. When asked in an
interrogatory what defenses it intended to raise, the county called the
question vague and referred to the list of defenses in its answer. Id.
Finally, the county moved for dismissal for failure to comply with the
notice claim provisions. This motion was filed four years after the
complaint. Id. at 425. The trial court denied the motion and the jury
returned a verdict for the plaintiffs.

On appeal, the judgment was reversed and the complaint dismissed for
failure to comply with the notice claim requirements. The Supreme Court
accepted review. Applying the common law doctrine of waiver, King found
that the county was not dilatory in asserting the defense, which was
properly included in the county's answer. Id. at 424. However, the
Supreme Court also found that the county's motion for summary judgment,
which did not include the notice claim defense, was inconsistent with the
later motion for dismissal. By failing to raise the notice claim defense
again until three days before trial--after the statute of limitations had
run--the county in effect ambushed the plaintiffs. Id. at 425.
Accordingly, the county had waived the claim filing deficiencies as an
affirmative defense. Id. at 427.

Ms. Butler filed her complaint just before the three-year statute of
limitations had run on her medical negligence claims. RCW 4.16.350.
Pursuant to RCW 4.16.170--the tolling statute--when a plaintiff files a
complaint without first serving the defendant, the plaintiff has 90 days to
personally serve the defendant or to commence service by publication.
Clark, 92 Wn. App. at 809. The summons must be served on the defendant
personally or by leaving a copy at defendant's usual abode with a person of
suitable age residing therein. RCW 4.28.080(15). Within the 90-day period
after Ms. Butler filed the complaint, she failed to properly serve the
summons on Dr. Joy, but immediately filed the return of service. See
Lybbert, 141 Wn.2d at 42 (when the process server's affidavit was filed,
the defendant knew or should have known that the defense of insufficient
service of process was available to it). Consequently, when Dr. Joy filed
the motion for summary judgment one month later--still within the 90-day
tolling of the statute of limitations--Dr. Joy already had all the facts
necessary to determine that insufficient service of process was an
available affirmative defense.

Applying the waiver doctrine to these facts, we find that, consistent
with the holding in King, Dr. Joy was not dilatory in raising the defense.
146 Wn.2d at 424. Pursuant to CR 12(b), insufficiency of service of
process could have been raised either in a CR 12 motion to dismiss or in
the responsive pleading. Dr. Joy raised the defense in her answer and was
therefore not dilatory under the rules. On the other hand, Dr. Joy filed a
summary judgment motion within the 90-day tolling period, agreed to strike
the motion only after the tolling period had run, and engaged in discovery
before finally asserting the defense when it was too late for Ms. Butler to
properly serve Dr. Joy. Discovery was not directed toward determining
whether additional facts supported the defense of insufficient service.
Romjue v. Fairchild, 60 Wn. App. 278, 281, 803 P.2d 57 (1991), cited with
favor in Lybbert, 141 Wn.2d at 40-41. With these actions, Dr. Joy
conducted herself in a manner inconsistent with her later assertion of the
defense of insufficient service of process. Romjue, 60 Wn. App. at 281.
As a result, she waived the defense. The trial court erred as a matter of
law in dismissing Ms. Butler's complaint on the basis of insufficient
service of process.
Motion for Continuance

Although unnecessary to our disposition of this appeal, we next
address Ms. Butler's contention that the trial court erred in denying her
newly retained counsel's oral motion for a continuance of the hearing on
the January 2002 motion for summary judgment. Under CR 56(f), a trial
court may continue a motion for summary judgment if affidavits of the
nonmoving party show a need for additional time to obtain affidavits, take
depositions, or conduct other discovery. The trial court may deny a motion
for a continuance when (1) the requesting party does not have a good reason
for the delay in obtaining the evidence; (2) the requesting party does not
indicate what evidence would be established by further discovery; or (3)
the new evidence would not raise a genuine issue of fact. Tellevik v.
31641 W. Rutherford St., 120 Wn.2d 68, 90, 838 P.2d 111, 845 P.2d 1325
(1992). We review the trial court's denial of a summary judgment
continuance for abuse of discretion. Mannington Carpets, Inc. v.
Hazelrigg, 94 Wn. App. 899, 902, 973 P.2d 1103 (1999).

Ms. Butler's attorney, Mr. Umuolo, was retained just the day before
the summary judgment hearing. He appeared without written affidavits in
support of a continuance and presented the motion orally. The hearing was
not recorded and we have no indication whether Mr. Umuolo argued that he
needed more time to obtain further discovery or what further evidence he
expected to produce. Strictly speaking, his motion does not fit within the
guidelines of a CR 56(f) continuance. However, '{t}he primary
consideration in the trial court's decision on the motion for a continuance
should have been justice.' Coggle v. Snow, 56 Wn. App. 499, 508, 784 P.2d
554 (1990). Ms. Butler had not yet requested a continuance on the January
2002 summary judgment motion. Her original counsel withdrew before the
motion was filed, and she obtained new counsel in a little over a month.
Although additional discovery was not needed to decide the issue of
insufficient service of process, Mr. Umuolo deserved an opportunity to
prepare a response on the issues of law. Dr. Joy has not argued that she
would have been prejudiced by a continuance. As noted in Coggle, it is
hard to see 'how justice is served by a draconian application of time
limitations' when a party is hobbled by legal representation that has had
no time to prepare a response to a motion that cuts off any decision on the
true merits of a case. Id. at 508.

Because we cannot find a tenable ground for the trial court's
decision, we hold that the denial of the continuance was an abuse of
discretion. However, because we also hold that the trial court erred as a
matter of law in granting summary judgment dismissal, we reverse.

* * *

Click the case caption above for the full text of the Court's Opinion.