No. 49153-9-IThe Court of Appeals of Washington, Division One.
Filed: May 28, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 002203586, Hon. Glenna S. Hall, July 26, 2001, Judgment or order under review.
Counsel for Appellant(s), Thanh H. Tran, 1215 4th Ave Ste 1700, Seattle, WA 98161-1007.
Counsel for Respondent(s), Craig E. Kastner, Law Offices of Craig E. Kastner, Ste N204, 19735 10th Ave NE, Poulsbo, WA 98370.
PER CURIAM.
Whether a defendant has informally appeared in a lawsuit and is therefore entitled to notice of a motion for default is a question of intent, evidenced by the actions of the defendant or the defendant’s agent.
When a defendant has actual knowledge of a lawsuit and nonetheless has no contact whatsoever with the plaintiff for several months, it is reasonable to conclude that the defendant does not intend to defend the lawsuit. Such a defendant has therefore not “appeared” for purposes of CR 55(a)(3) and is not entitled to notice of the motion for default. Here, the defendant’s insurance company engaged in settlement negotiations with the plaintiff prior to the lawsuit being filed. But neither the defendant nor his agent had any contact whatsoever with the plaintiff or her agents from the time the suit was filed until the motion for default was filed several months later, notwithstanding the fact that the defendant had actual knowledge of the initiation of the lawsuit. Under these facts, the trial court was not required to find that the defendant had informally appeared. Absent such a finding, the trial court did not err in denying the defendant’s motion to vacate based on a lack of notice of plaintiff’s motion for default.
Nor did the trial court err in not vacating the judgment based on a lack of jurisdiction. While the defendant was not served until more than ninety days had passed after the suit was filed and the statute of limitations had expired, the defendant evaded service thereby tolling the statute of limitations. Finally, the trial court’s award of damages was not excessive. We therefore affirm.
FACTS
On August 19, 1997, Cara Wilson and Terrance Williams were involved in a car accident. Williams was cited at the scene for improper lane change. As a result of the accident, Wilson sustained major damage to her car and was injured.
On August 22, 1997, Williams’ insurance company was provided with an estimate for the repair of Wilson’s car. On January 13, 1998, Wilson’s insurance company sought reimbursement for the vehicle repairs from Williams’ insurance company, who paid the amount in full.
On March 14, 1998, Williams’ insurance company wrote a letter to Wilson regarding the status of her injuries. On April 14, 1999, Wilson’s insurance company responded by sending a letter indicating that it had paid out $1,276.43 in personal injury protection (PIP) payments, and demanding reimbursement. Apparently, Williams’ insurance company did not reimburse Wilson’s company for the PIP payment.
Over the next two years, Williams’ insurance company engaged in settlement negotiations with Wilson. On July 10, 1998, it sent Wilson a letter asking her to call to discuss settlement. On September 1, 1998, the company sent Wilson a letter following up on telephonic settlement discussions. On March 26, 1999, the insurance company sent Wilson a letter confirming an oral settlement offer. The company sent Wilson follow up letters on August 12, 1999, December 28, 1999, and April 10, 2000.
On May 23, 2000, Williams’ insurance company received a letter from Wilson’s attorney confirming that he had been retained to represent Wilson in the matter. On June 13, 2000, Williams’ insurance company sent a letter to Wilson’s attorney attempting settlement, and indicating a desire to resolve the matter promptly. On July 19, 2000, the insurance company alleges that it sent Wilson’s counsel a follow up letter, but the letter is not a part of the record, and Wilson’s attorney denies having received the second letter. There were no further settlement negotiations or other contacts.
On August 1, 2000, Wilson filed the instant lawsuit. Wilson hired a process server, who attempted to serve Williams nine times at the address he had given at the time of the accident. The process server then learned that Williams had moved and did not leave a forwarding address. Williams had an unlisted phone number and address. Williams did not update his address with the Department of Licensing. On October 13, 2000, the process server did a social security check and found Williams’ new address.
The process server made numerous unsuccessful attempts to serve Williams at this address. According to the process server, Williams did not answer the door to his apartment, although the process server saw light and heard noises coming from inside the apartment. On several occasions, the process server left “hangers” on Williams’ door asking him to call a number so the process server could confirm that he had the correct address. Williams removed the hangers from his door although he did not call as requested. After “staking out” Williams’ apartment for approximately three weeks, a process server was able to serve Williams when he came outside to check his mail on November 5, 2000. Two process servers submitted affidavits stating that in their opinion, Williams had been willfully and knowingly evading service.[1]
On March 15, 2001, Wilson moved for an order of default and said order was granted. On April 5, 2001, the trial court entered judgment on the default order. On April 12, Wilson’s attorney sent a letter to Williams’ insurance company demanding payment on the judgment. That letter was received by the insurance company on April 19, 2001. The insurance company apparently retained counsel for Williams, who moved to vacate the order of default and default judgment on May 15, 2001.
Williams’ motion to vacate was based on his contention that he had informally appeared in the matter based on the actions detailed above, and was therefore entitled to notice of the motion for default. In support of his initial motion, Williams argued that he had a prima facie defense to Wilson’s claims based on jurisdictional grounds. Specifically, he argued that the action was not timely commenced, and that he therefore had a strong defense based on the statute of limitations. He did not, however, argue that a lack of jurisdiction rendered the judgment void. Williams’ motion was denied. The trial court did not enter any findings of fact or conclusions of law, and did not explain its basis for denying the motion to vacate.
Williams then moved for reconsideration, arguing for the first time that the judgment was void for want of jurisdiction. Specifically, he argued that he was not served until more than ninety days after the lawsuit was filed, and that the statute of limitations had expired prior to service. In response, Wilson argued that the statute of limitations was tolled due to Williams’ intentional evasion of service. Wilson also argued that Williams’ had waived the issue by raising it for the first time in his motion to reconsider. The trial court denied the motion to reconsider without comment. This appeal follows.
DISCUSSION
In general, we review a trial court’s decision to grant or deny a motion to vacate a default judgment for an abuse of discretion. Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 323, 877 P.2d 724 (1994). But a court has a nondiscretionary duty to vacate a void judgment. In re A.G., 93 Wn. App. 268, 276, 968 P.2d 424 (1998). In this case, we must determine if the judgment entered in favor of Wilson was void. If it was, then we must reverse the trial court’s denial of Williams’ motion to vacate.
If a defendant has appeared in an action, he or she is entitled to notice of a motion for default. CR 55(a)(3). If a defendant who has appeared in an action is not given proper notice prior to entry of the order of default, the defendant is entitled to vacation of the default judgment as a matter of right. Shreve v. Chamberlin, 66 Wn. App. 728, 832 P.2d 1355 (1992). The question of whether a defendant has informally appeared is generally a question of fact for the trial court. Colacurcio, 41 P.3d at 510. The actions of an insurance adjuster, working as a defendant’s agent, may under certain circumstances be sufficient to amount to an informal appearance. Colacurcio, 41 P.3d at 510; Batterman v. Red Lion Hotels, Inc., 106 Wn. App. 54, 21 P.3d 1174, 1177 (2001). We review the trial court’s determination of whether a party has informally appeared for an abuse of discretion. Colacurcio, 41 P.3d at 509, citin Batterman, 106 Wn. App. at 59.
Williams argues that the facts of this case are substantially similar to those in Colacurcio, and that the actions of Williams’ insurance representatives amounted to an informal appearance. In Colacurcio, the defendant’s insurance adjusters had extensive settlement negotiations with the plaintiff and her attorney. These negotiations continued after the suit was initiated, although the insurance company was not aware of the initiation of the lawsuit. The plaintiff moved for default a mere two weeks after the last contact with the insurance company without giving notice to the defendant. We held that the trial court did not abuse its discretion in finding that the defendant had appeared and was therefore entitled to notice of the motion for default. Because no notice was given, the subsequent default judgment must be set aside, and the trial court properly granted the defendant’s motion to vacate.
We believe that Colacurcio is distinguishable. As a preliminary matter, we did not hold as a matter of law that the defendant’s actions in that case amounted to an informal appearance, but merely that the trial court did not abuse its discretion in finding that the defendant has appeared. Here, conversely, the trial court did not abuse its discretion in failing to find a constructive appearance. To the contrary, the defendant’s actions and those of his agent here may well not be sufficient to amount to an appearance as a matter of law.
As we held in Colacurcio, whether a party has appeared is a question of intention as demonstrated by the defendant’s actions. Colacurcio, 41 P.3d at 509 (citations omitted). As we noted in Batterman, Washington courts “broadly construe the concept of appearance to accomplish its object, which is to apprise the plaintiff of the course the defendant intends to pursue, and whether the defendant intends to litigate the case. Default judgments are normally viewed as proper only when the adversary process has been halted because of an essentially unresponsive party.”
Colacurcio, 41 P.3d at 509, quoting Batterman, 106 Wn. App. at 61
(internal citations omitted). As we held in Batterman and Colacurcio, the question is whether the plaintiff could have entertained any illusions about the defendant’s intent to defend the suit.
In contrast to those cases, Williams was an “essentially unresponsive party.” While Williams’ insurance representatives apparently had many contacts with Wilson prior to the suit being filed, they had none for between two weeks[2] and six weeks[3] prior to the suit being filed. Williams had actual knowledge of the initiation of the lawsuit, yet neither he nor his agents had any contacts whatsoever for between six and seven months prior to the motion for default. Under these circumstances, Wilson could easily have entertained the illusion that Williams no longer intended to defend the suit (if indeed he ever did have such an intention). Indeed, it is difficult to conceive of any alternate explanation for Williams’ failure to take any action for this length of time. Neither Williams’ actions nor the actions of his agents demonstrated an intent to defend the suit. The trial court therefore did not abuse its discretion in failing to find that his actions amounted to a constructive appearance, nor did it err in denying Williams’ motion to vacate the order of default and default judgment on this basis. Williams also appears to contend that Williams’ insurance company was entitled to notice of the suit. See, e.g., Appellant’s Opening Brief at p. 17-18, discussing the fact that plaintiff knew how to contact Williams’ insurance company after the judgment was entered but “did not use this knowledge to give the judgment debtor’s representative [i.e., the insurance company] an opportunity to appear and defend against the default.” Because the insurance company is not a party to the suit, it was not entitled to notice. This argument has been specifically rejected in Washington. See, e.g., Caouette v. Martinez, 71 Wn. App. 69, 856 P.2d 725 (1993) (holding that the trial court abuses its discretion when it vacates a default judgment on the grounds that the plaintiff failed to notify the defendant’s insurance company of the motion for default).
We next turn to the issue of whether the judgment was void based on a lack of jurisdiction over Williams. The statute of limitations in this matter is three years. RCW 4.16.080. RCW 4.16.170 provides that for purposes of tolling the statute of limitations, an action is commenced when the complaint is filed or the summons is served, whichever happens first. If the defendant is not served prior to the complaint being filed, the plaintiff must serve the defendant within ninety days of the filing of the complaint. If “service is not so made, the action shall be deemed to not have been commenced for purposes of tolling the statute of limitations.” RCW 4.16.170. Here, the accident occurred on August 19, 1997. Wilson filed her suit on August 1, 2000. She then had ninety days, or until October 31, 2000, to accomplish service on Williams. She did not do so. Wilson argues that Williams waived the jurisdictional issue by raising it for the first time in his motion for reconsideration. This argument is without merit.
Because Williams raised the statute of limitations defense in his initial motion to vacate, he did not waive any jurisdictional arguments. Wilson also argues that the statute of limitations was tolled because Williams had concealed himself. RCW 4.16.080 provides:
If the cause of action shall accrue against any person 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 end of such concealment; and if after such cause of action shall have accrued, such person shall conceal himself, the time of his concealment shall not be deemed or taken as any part of the time limit for the commencement of such action.
“Concealment” means willful evasion of process and “clandestine or secret removal from a known address.” Caouette v. Martinez, 71 Wn. App. at 74 Buxton v. Perry, 32 Wn. App. 211, 646 P.2d 779 (1982). The question of whether a defendant has concealed himself so as to evade process is a factual question. Bethel v. Sturmer, 3 Wn. App. 862, 867, 479 P.2d 131
(1970).
The evidence submitted to the trial court demonstrated that Williams had moved from the address he gave at the time of the accident, left no forwarding address, obtained an unlisted phone number and address, and did not update his address with the Department of Licensing. Williams submitted no evidence to the contrary, nor did he submit any information to explain why he had not left a forwarding address or updated his address with DOL as required by law.[4] The uncontroverted facts, combined with the fact that Williams was apparently also being sought by the Office of Support enforcement, support a finding that Williams clandestinely or secretly moved from his known address. See e.g., Caouette v. Martinez, 71 Wn. App. at 72 (affirming finding that defendants had concealed themselves when process servers were unable to locate defendants despite postal traces, telephone searches, and inquiries at defendants’ last known address).
The evidence submitted by Wilson also supports a finding that Williams willfully evaded process. The Supreme Court has held that the mere fact that a defendant does not come to the door or will not arrange a time and place for service does not constitute evasion of service. Weiss v. Glemp, 127 Wn.2d 726, 734, 903 P.2d 455 (1995). Weiss is distinguishable. In that case, the defendant was a Polish cardinal who was sued for making allegedly defamatory comments during a sermon delivered in Poland. The suit was filed in King County Superior Court while the cardinal was on a three-day pastoral visit to Seattle. The day after the suit was filed, a process server knocked on the door of the rectory where the cardinal was staying. A priest came to the door and told the process server that the cardinal was having breakfast, and to return later. When the server advised that he had legal documents for the cardinal, a second priest came to the door, told the server that the cardinal was unavailable, and asked the server to leave. The process server waited outside for two hours before finally attempting to serve the cardinal by leaving documents on a windowsill. In addition to holding that leaving the documents on the windowsill did not constitute proper service, the Supreme Court also held that the cardinal did not attempt to evade service by not coming to the door.
The holding in Weiss is based on the earlier case of Thayer v. Edmonds, 8 Wn. App. 36, 503 P.2d 1110 (1972). Thayer is likewise distinguishable. At the time the process server in that case first attempted service, “none of the defendants had avoided service in any way.” Thayer, 8 Wn. App. at 37. The process server nonetheless did not determine the defendant’s addresses until the last day allowed for service of process. He called the defendant after 11:30 p.m., at which time the defendant and her husband were in bed and nearly asleep, and told her that he needed to serve her with papers before midnight. The defendant gave the process server directions to her home but at her husband’s insistence, she told him that they would not wait up for him and would not answer the door.
The process server came to the defendant’s home and, when she did not answer the door, he left the documents between the door and doorjam, where the defendant picked them up the next morning. The court held that these actions did not constitute willful evasion of process.
In both Weiss and Thayer, the process server made only one attempt to serve the defendant. In contrast, the process server here made numerous attempts to serve the defendant. Simply failing to open the door, even if done repeatedly, may not be sufficient to demonstrate willful evasion of process. But Williams’ actions are informed by his earlier clandestine move, and the fact that he also attempted to evade an earlier attempt at service by the Office of Support Enforcement. The fact that Williams did not respond to requests to call, and that the process server essentially staked out Williams’ apartment for weeks before finally catching him getting his mail, are also factors supporting a finding that Williams was willfully evading service. Viewed as a whole, it is clear that Williams concealed himself to avoid process. In the absence of any credible explanation on Williams’ part, the trial court was required to find, as a matter of law, that Williams had indeed concealed himself. Under RCW 4.16.080, the period in which Williams concealed himself is excluded from the period of the statute of limitations. Although service was accomplished ninety-six days after the suit was filed, Williams had concealed himself for more than six days. Service was therefore timely, and the court had jurisdiction over Williams.
Finally, Williams argues that the trial court erred in denying the motion to vacate because the damages awarded were excessive. Under certain circumstances, an excessive award of damages or an award not supported by the evidence may be in and of itself a basis for granting a motion to vacate a default judgment. Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd Hokanson, 95 Wn. App. 231, 974 P.2d 1275
(1999), review denied, 140 Wn.2d 1007 (2000). But here, the court’s award was supported by Wilson’s affidavit wherein she claimed serious and permanent injuries.
In moving to vacate the judgment, Williams provided no affidavits or other evidence to support his contention that the award was excessive, relying instead on conclusory allegations. “A court hearing a motion to vacate decides whether the affidavits presented set forth substantial evidence to support a defense to the claim.” Shepard Ambulance, 95 Wn. App. at 239 (footnote omitted). These affidavits “must set out the facts constituting a defense and cannot merely state allegations and conclusions.” Shepard Ambulance, 95 Wn. App. at 239 (footnote omitted). Under these circumstances, the trial court did not abuse its discretion in denying Williams’ motion to vacate.
In conclusion, Williams did not informally appear, and was therefore not entitled to notice of the motion for default. Because Williams concealed himself, service was proper and the court had jurisdiction over Williams.
We therefore affirm the denial of Williams’ motion to vacate.