                                                                            FILED 

                                                                         JULY 28, 2015 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


ROBERT LEVESQUE, et aI.,                      )
                                              )         No. 33012-5-111
                     Respondents,             )
                                              )
       v.                                     )
                                              )
DIANE MATHENY, et al.,                        )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )
                                              )

       SIDDOWAY, C.J.      On appeal, Diane Matheny alleges the trial court erred when it

entered an order quieting title to land she was using. Arguing service was improper and

she never received notice of the summary judgment motion, she alleges the trial court

erred when it granted summary judgment based on her lack of response. Because there

was no error, we affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       In March of 20 13, Priscilla and Robert Levesque, I brother and sister, commenced

an action to quiet title to a portion of their land that had been encroached upon by their



       1 Because  we refer to several members of the Levesque family, we frequently use
their first names. We intend no disrespect.
 No. 33012-5-III
 Levesque v. Matheny


 sister, Diane Matheny, who owned an adjacent parcel. 2 The complaint also sought a writ

 of ejectment-specifically, removal of Ms. Matheny's property from storage sheds

. located on the Levesque parcel. Finally, the complaint requested a declaratory judgment

 that an earlier agreement, which granted the Levesques permission to use the well house

 on the Matheny parcel, was valid.

       Before filing the complaint, Jason Zittel-the attorney for the Levesques­

 attempted to communicate with Ms. Matheny about a potential settlement. These

 communications were mailed directly to Ms. Matheny's residence. All mailings were

 returned to Mr. Zittel unopened and marked "return to sender," "no forward," and "not

 this address." Clerks Papers (CP) at 82, 85.

        Evidence was submitted that Ms. Matheny did in fact live at the home located on

 the Matheny parcel, but was avoiding all communications from Mr. Zittel. Because of

 Ms. Matheny's implicit refusal to engage with Mr. Zittel, the court entered an a order

 permitting service of a summons and complaint by mail pursuant to CR 4(d)( 4).

 Nevertheless, Ms. Matheny received personal service of the summons and complaint.



       2 In a letter dated October 8, 1998, Ms. Matheny memorialized that a fence and
 some sheds belonging to her were encroaching onto the Levesque parcel. The letter
 indicated that she was using the land with the owner's permission. The letter further
 acknowledged that a well house located on the Matheny parcel would remain the
 property of her mother, Dorothy Levesque. In 2005, Dorothy passed away and Priscilla
 and Robert Levesque were the sole tenants with right of survivorship of the Levesque
 parcel.

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No. 33012-5-III
Levesque v. Matheny


       It is unclear whether Ms. Matheny, who proceeded pro se, intended to file an

answer to the complaint. She mailed a manila envelope containing potentially pertinent

documents to Mr. Zittel, but she denies that the mailing was an answer. The return

address handwritten on the manila envelope was the address of the Matheny parcel.

       In July, Priscilla and Robert moved the court for summary judgment on their

claims. A certificate of service indicated that Mr. Zittel's office mailed the summary

judgment motion to the residential address at the Matheny parcel. Ms. Matheny did not

respond to the motion, nor did she attend argument. At argument, the court signed an

order granting the Levesques summary judgment.

      Ms. Matheny filed a motion to stay the writ of execution on the basis that she was

never served with the motion. At the hearing on Ms. Matheny's motion, Mr. Zittel

presented evidence that on July 16, he mailed the summary judgment motion to Ms.

Matheny'S residence. Consistent with the other mailings sent to that address, the

documents were unopened and returned to the sender. Mr. Zittel presented additional

evidence that in a different matter pending at the Thurston County Superior Court, Ms.

Matheny listed the address of the Matheny parcel as the proper address for service. Mr.

Zittel further presented evidence that the motion was mailed to the same address as the

return address listed on Ms. Matheny's limited correspondence with him. The court

denied Ms. Matheny's motion to stay and instead entered a judgment vesting the




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No. 33012-5-111
Levesque v. Matheny


Levesques with title to the property and issuing a writ of restitution. Ms. Matheny timely

appealed the court's order and judgment.

                                        ANALYSIS

       We review a trial court's grant of summary judgment de novo. Korslund v.

Dyncorp Tri-Cities Servs. Inc., 156 Wn.2d 168, 177, 125 P.3d 119 (2005). Summary

judgment is appropriate when the moving party shows there is "no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter oflaw."

CR 56(c). After a party moving for summary judgment submits adequate affidavits, the

nonmoving party must set forth specific facts rebutting the moving party's contentions

and disclosing that a genuine issue of material fact exists. Seven Gables Corp. v.

MGMlUA Entm 't Co., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986).

       Ms. Matheny did not respond to the motion for summary judgment. She did not

provide the court with facts rebutting the Levesques' contentions; thus, she failed to

disclose the existence of a genuine issue of material fact.

       Ms. Matheny contends the court erred in concluding she was properly served and

as a result, summary judgment was not warranted. Specifically, Ms. Matheny argues the

court erred when it entered the order allowing her to be served by mail. She further

contends the trial court erred when it did not require the Levesques to serve her via

certified or registered maiL




                                              4

No. 33012-5-II1
Levesque v. Matheny


       Ms. Matheny's argument that the court erred in entering an order allowing her to

be served via mail is meritless. On March 21,2013, an ex parte order authorizing service

by mail under CR 4( d)( 4) was entered. CR 4( d)( 4) provides an alternative to service by

publication for a summons and complaint when it appears that service by mail is just as

likely to result in actual notice. But because Ms. Matheny was ultimately personally

served with the summons and complaint, CR 4(d)(4) is not relevant.

       Ms. Matheny's next argument, that service of the summary judgment motion

should have been via registered or certified mail, also fails. CR 5(b)(l) governs service

of motions and permits service by mail. CR 5(b)(2) prescribes the proper procedure for

effecting service by mail and requires only that "the papers shall be deposited in the post

office addressed to the person on whom they are being served, with the postage prepaid."

CR 5(b )(2)(A). There is no requirement that the mail be sent via registered or certified

maiP

       Service may be proved through a "written acknowledgment of service, by affidavit

of the person who mailed the papers, or by certificate of an attorney." CR 5(b )(2)(B). "A

declaration or certificate that is filed in compliance with RCW 9A.72.085 may be used as



        3 Ms. Matheny relies on CR 5(g) for the proposition that the motion needed to be
sent through registered or certified mail. CR 5(g) provides, "Whenever the use of
'registered' mail is authorized by statutes relating to judicial proceedings or by rule of
court, 'certified' mail, with return receipt requested, may be used." Because CR 5(b)
does not require the use of registered mail, CR 5(g) is not applicable here.

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No. 33012-5-II1
Levesque v. Matheny


a substitute for proof of service under CR 5(b)(2)(B)." Brackman v. City ofLake Forest

Park, 163 Wn. App. 889, 895,262 PJd 116 (2011) (citing Manius v. Boyd, III Wn.

App. 764, 768,47 PJd 145 (2002)). RCW 9A.72.085 provides that a declaration is

sufficient when it recites that it is certified under penalty of perjury, states the date and

place of execution, states that it is subject to the laws of the State of Washington, and is

subscribed to by the person. RCW 9A.72.085(l).

       Here, Ms. Matheny was mailed a copy of the motion for summary judgment and

all accompanying documents at her last known address. Not only were the documents

mailed to Ms. Matheny's residence, but her residential address comports with the return

address listed by Ms. Matheny on her correspondence with Mr. Zittel. Service by mail

was proper.

       Further, the Levesques submitted proof of service of the motion papers. The

record contains a certificate of the attorney indicating that Ms. Matheny was served at her

residential address. This alone is sufficient proof of service under CR 5(b )(2)(B).

Additional proofs of service, however, are also included in the record. For example, the

declaration of service accompanying the motion for summary judgment was signed by

Mr. Zittel's paralegal and complies with RCW 9A.72.085. See Manius, III Wn. App. at

769-70. Additionally, a second declaration from Mr. Zittel affirmatively states Ms.

Matheny was served by mail on July 16. Attached to Mr. Zittel's second declaration was




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No. 33012-5-III
Levesque v. Matheny


the original envelope containing the summary judgment motion that was sent to Ms.

Matheny's residential address. The envelope was returned to sender unopened.

       Service by mail was proper and proof of service is adequate to demonstrate that

Ms. Matheny had notice of the Levesques' motion for summary judgment. Ms. Matheny,

however, failed to show a genuine issue of fact existed. Summary judgment was

appropriate.

      Affirm.

      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.




WE CONCUR: 




Brown, J.




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