No. 50706-1-IThe Court of Appeals of Washington, Division One.
Filed: May 12, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 00-2-26203-5 Judgment or order under review Date filed: 05/01/2002
Counsel for Appellant(s), David Carl Beyersdorf, Law Offices of Hal J Geiersbach, 1025 So. 320th St. Ste 205, Federal Way, WA 98003.
Counsel for Respondent(s), Angela R. Bagby, Thorsrua Cane Paulich, 1325 4th Ave Ste 1300, Seattle, WA 98101-2509.
Paul Francis Cane, Thorsrud Cane Paulich, 1325 4th Ave Ste 1300, Seattle, WA 98101-2509.
SCHINDLER, J.
Joseph Vines sued Megan Niehoff for injuries he sustained when the two were involved in an automobile accident. After the accident, Niehoff moved from Washington to Oregon, and Vines served her by publication. Vines obtained a default judgment against Niehoff. The trial court entered orders granting Niehoff’s motion to vacate the default judgment and her motion for summary judgment. Vines appeals both orders.
We affirm.
FACTS
On October 22, 1997, Vines and Niehoff were involved in an automobile accident. At the time, Niehoff was 17 years old and resided with her parents in Enumclaw, Washington.
On October 1, 2000, Niehoff moved to Oregon to temporarily live and work at a youth camp. On October 20, 2000, Vines filed a complaint against Niehoff seeking recovery for personal injuries he sustained as a result of the car accident. Vines made one attempt to personally serve Niehoff: on October 24, 2000, a process server went to Niehoff’s parents’ house in Enumclaw. Niehoff’s father informed the process server that his daughter had moved to Oregon.[1]
On December 14, 2000, Vines filed a motion for an order to publish the summons by publication. His counsel’s affidavit states that the process server attempted to personally serve Niehoff, learned from her father that she had moved to Oregon, and was unable to obtain a current address. Vines published the summons in The Daily Journal of Commerce once a week for six weeks.[2]
Vines moved for an order of default. On May 23, 2001, the court entered an order of default against Niehoff. On February 12, 2002, the court entered a judgment and order for damages in the amount of $158,584.11. Vines notified Niehoff’s insurer of the judgment by letter dated February 18, 2002.
Niehoff asserts that she first learned of the lawsuit in February 2002. She entered her appearance on March 7, 2002, and filed a motion to vacate the default judgment and to dismiss Vines’ claims.
On April 29, 2002, the trial court entered an order vacating the default judgment and denying the motion to dismiss without prejudice. With respect to the default judgment, the court found that Vines failed to make reasonable efforts to locate Niehoff for personal service and failed to strictly comply with the service by publication statute.
The parties conducted additional discovery about the statute of limitations and Niehoff’s residence following the accident. On July 23, 2002, Niehoff filed a motion for summary judgment, alleging that the statute of limitations had expired by the time Vines filed his lawsuit. On August 9, 2002, the trial court granted Niehoff’s motion for summary judgment and dismissed Vines’ claims with prejudice. Vines appeals both the order vacating the default judgment and the order of summary judgment dismissing the lawsuit.
DISCUSSION
A decision to vacate a default judgment is a matter within the discretion of the trial court.[3] `This court will not disturb the trial court’s decision unless it was manifestly unreasonable, based on untenable grounds or untenable reasons.’[4] A trial court has greater discretion to grant a motion to vacate a default judgment where, as here, service is by publication.[5]
Pursuant to CR 55(c), a default judgment may be set aside in accordance with CR 60(b). Under CR 60(b), if the defendant was served by publication, relief from the judgment may be granted as prescribed in RCW 4.28.200:[6]
If the summons is not served personally on the defendant in the cases provided in RCW 4.28.110 and 4.28.180, he or his representatives, on application and sufficient cause shown, at any time before judgment, shall be allowed to defend the action and, except in an action for divorce, the defendant or his representative may in like manner be allowed to defend after judgment, and within one year after the rendition of such judgment, on such terms as may be just; and if the defense is successful, and the judgment, or any part thereof, has been collected and otherwise enforced, such restitution may thereupon be compelled as the court directs.[7]
RCW 4.28.200 gives a defendant additional rights if the default judgment was based upon service by publication and gives the court greater discretion to vacate a default judgment than where the defendant is personally served.[8]
Niehoff’s motion to vacate the default judgment was filed well within a year of the entry of the default judgment. And, there was sufficient cause to vacate the default judgment because Vines failed to properly serve Neihoff.
Vines served Niehoff by publication pursuant to RCW 4.28.100. `Service by publication is in derogation of the common law and cannot be used when personal service is possible.’[9] One form of personal service is service on the Secretary of State pursuant to RCW 46.64.040.[10] Under that statute:
[E]ach resident of this state who, while operating a motor vehicle on the public highways of this state, is involved in any accident, collision or liability and thereafter within three years departs from this state appoints the secretary of state of the state of Washington as his or her lawful attorney for service of summons. . . . Service of such summons or process shall be made by leaving two copies thereof with a fee established by the secretary of state by rule with the secretary of state of the state of Washington, or at the secretary of state’s office, and such service shall be sufficient and valid personal service upon said resident[.][11]
Although the situation presented here falls squarely within the terms of the statute, Vines did not use this method of personal service on Niehoff. Niehoff was a Washington resident at the time of the accident and left the state within three years of the accident. Vines could have and should have used this method of personal service and, because it was available, service by publication was ineffective.[12]
Vines argues that service on the Secretary of State was not available because the legislature did not allow for service on the Secretary of State during the 90-day tolling of the statute of limitations under RCW 4.16.170.[13] In Martin v. Triol, the Court held `that when a plaintiff commences suit by filing a complaint, it is logical to construe RCW 4.16.170 as extending by 90 days the time period for satisfying the provisions of RCW 46.64.040.’[14] This holding refutes Vines’ argument that the legislature did not intend to allow service during the 90-day tolling period.
Vines could have effected personal service by serving the Secretary of State pursuant to RCW 46.64.040 and mailing notice of such service along with a copy of the summons to Niehoff’s last known address, which was her parents’ address. Service of process by publication was therefore improper. Without proper service of process, there was no personal jurisdiction over Neihoff and the judgment entered against her was void.[15] The trial court properly vacated the default judgment.
Even assuming Vines could have properly served Niehoff by publication, his attempt at service by publication was ineffective because he failed to strictly comply with the service by publication statute, RCW 4.28.100.[16] The statute lists eight circumstances under which service may be made by publication of the summons. It also requires that the plaintiff or the plaintiff’s attorney file an affidavit stating:
that he believes that the defendant is not a resident of the state, or cannot be found therein, and that he has deposited a copy of the summons . . . and complaint in the post office, directed to the defendant at his place of residence, unless it is stated in the affidavit that such residence is not known to the affiant, and stating the existence of one of the cases hereinafter specified[.][17]
‘At least one of the eight factual scenarios enumerated in RCW 4.28.100
to which publication applies must be recited in the affidavit.’[18] The statute requires strict, not substantial compliance.[19]
Here, the affidavit Vines’ counsel submitted in support of the motion for service by publication does not identify which of the eight circumstances applies. In fact, it does not even mention the statute or its requirements. The affidavit states only that, at the time of the accident, Niehoff was a resident of Washington; that the process server attempted to serve her and learned from Niehoff’s father that she had moved to Oregon; that Niehoff’s father did not give the process server her current address; that Vines has been unable to locate a current address for Niehoff; and that it appears to Vines’ counsel that Niehoff cannot be personally served in Washington.[20] Not only is the affidavit deficient because it does not identify which of the eight sets of circumstances set forth in the statute applies,[21] but it is also deficient because it does not set forth facts to show that any of these sets of circumstances exists.[22]
Further, an allegation in an affidavit that the defendant cannot be found within the state is insufficient absent a showing that the plaintiff exercised reasonable diligence in attempting to locate the defendant.[23] In determining whether service by publication is permissible, the issue is not only whether the affidavit complies with the statute, but also whether the plaintiff in fact made reasonable efforts to locate the defendant before seeking service by publication. Although due diligence is normally a factual question, here, the facts are undisputed.[24]
The affidavit states only that the process server attempted personal service once and that Vines `has been unable to locate a current address for Defendant.’[25] It does not set forth facts showing due diligence.[26] The trial court properly found that Vines did not make reasonable efforts to locate Niehoff.
Under CR 55(c), CR 60(b), and RCW 4.28.200, the trial court did not abuse its discretion by vacating the default judgment.
Vacating the default judgment was proper under case law as well. A court must consider four factors in deciding whether to vacate a default judgment. Two of the factors are weighted more heavily than the other two:
whether there is substantial evidence to support, at least prima facie, a defense to the plaintiff’s claim and whether the moving party’s failure to timely appear and answer was occasioned by mistake, surprise, or inadvertence.[27] The other two factors a court must consider are: whether the moving party acted with due diligence after notice of entry of the default judgment and whether substantial hardship will result to the opposing party.[28] ‘[W]here the moving party is able to demonstrate a strong or virtually conclusive defense to the opponent’s claim, scant time will be spent inquiring into the reasons which occasioned entry of the default, provided the moving party is timely with his application and the failure to properly appear in the action in the first instance was not willful. On the other hand, where the moving party is unable to show a strong or conclusive defense, but is able to properly demonstrate a defense that would, prima facie at least, carry a decisive issue to the finder of the facts in a trial on the merits, the reasons for his failure to timely appear in the action before the default will be scrutinized with greater care, as will the seasonability of his application and the element of potential hardship on the opposing party.’[29]
Niehoff had a strong and conclusive defense to Vines’ action, namely lack of jurisdiction because of improper service. Her motion to vacate the default judgment was timely, and there is no evidence that her failure to appear in the first instance was willful.
The order granting Niehoff’s motion for summary judgment was likewise proper. The statute of limitations expired before Vines properly served Niehoff. The court never had personal jurisdiction over Niehoff and properly entered summary judgment in her favor.[30]
Vines argues that the statute of limitations was tolled pursuant to RCW 4.16.180 during the period Niehoff was absent from the state.[31] In Smith v. Forty Million, Inc.,[32] the Court held that, in an action for damages arising out of an automobile collision on a highway in Washington, the statute of limitations is not tolled pursuant to RCW 4.16.180 by the defendant’s absence from the state, when the plaintiff has available the right to proceed under RCW 46.64.040 and serve the Secretary of State. Vines argues that Smith does not apply because he did not have Niehoff’s address in Oregon. But, RCW 46.64.040 requires only that the plaintiff send a copy of notice of service on the Secretary of State along with a copy of the summons by registered mail to the defendant `at the last known address of the said defendant’.[33]
Vines argues that this case is analogous to Brown v. Pro West Transport,[34] where the court held that service on the Secretary of State under RCW 46.64.040 was not available because no addresses for the defendant were available, including a last known address. Brown is distinguishable and does not support Vines’ argument that service on the Secretary of State was not available. There is no dispute that Vines had the address of Niehoff’s parents, where she lived prior to moving to Oregon. The statute does not require that the plaintiff have the defendant’s current address. Because service on the Secretary of State was an available method of service, the statute of limitations was not tolled by Niehoff’s absence from Washington.
We affirm the trial court’s orders vacating the default judgment and granting Niehoff’s motion for summary judgment.
COLEMAN and BECKER, JJ., concur.
(1993).
For the purpose of tolling any statute of limitations an action shall be deemed commenced when the complaint is filed or summons is served whichever occurs first. If service has not been had on the defendant prior to the filing of the complaint, the plaintiff shall cause one or more of the defendants to be served personally, or commence service by publication within ninety days from the date of filing the complaint. If the action is commenced by service on one or more of the defendants or by publication, the plaintiff shall file the summons and complaint within ninety days of service. If following service, the complaint is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.
(1995).
If the cause of action shall accrue against any person who is a nonresident of this state, or who is a resident of this state and shall be out of the state, or concealed therein, such action may be commenced within the terms herein respectively limited after the coming, or return of such person into the state, or after the end of such concealment; and if after such cause of action shall have accrued, such person shall depart from and reside out of this state, or conceal himself, the time of his absence or concealment shall not be deemed or taken as any part of the time limit for the commencement of such action.