No. 56613-0-I.The Court of Appeals of Washington, Division One.
May 1, 2006.
Appeal from a judgment of the Superior Court for King County, No. 04-2-08687-6, Michael Hayden, J., entered June 27, 2005.
Affirmed by unpublished per curiam opinion.
Counsel for Appellant(s), Philip Mahoney, Attorney at Law, 720 3rd Ave Ste 1903, Seattle, WA 98104-1819.
Counsel for Respondent(s), Larry James Landry, Attorney at Law, 1820 E Union St, Seattle, WA 98122-2832.
PER CURIAM.
Ronald Myers moved to vacate a default judgment taken against him, claiming improper service of process and an inappropriate damage award. The trial court denied his motion to vacate, and Myers appeals on the issue of whether service was proper. We affirm, because Myers did not provide clear and convincing evidence that service was improper.
I.
In June 2004, Donald Winston sued Ronald Myers for $16,364.75 plus interest owing on a contract to purchase a tow truck. He served the summons and complaint at the home of Myers’ mother, Cleotha Myers, which was the address listed on Myers’ business records and driver’s license.[1] When Myers did not reply, Winston submitted a proper affidavit of service and moved for default. The process server verified in the affidavit that Ronald Myers was a resident at Cleotha Myers’ home, and identified the man receiving service as a resident.[2] Within one month of service, Myers had informed his attorney of the suit and had filed a notice of appearance. Myers failed to appear at the default hearing, and Winston obtained a judgment. Winston moved to show cause why the truck should not be repossessed. Neither Myers nor his attorney appeared at that hearing. The truck was repossessed in December 2004. In June 2005, Myers moved to vacate the judgment. He contested only the amount of money owing on the contract. He also claimed that service of process was improper. The trial court denied Myers’ motion to vacate, finding no grounds for his failure to act on the default judgment from June 2004 to June 2005. Myers appeals.
II.
The decision to grant or deny a motion to vacate a judgment is within the trial court’s sound discretion. The decision is upheld on appeal unless the trial court abused its discretion. Vacation is mandatory, however, if the judgment is void,[3] regardless of the amount of time elapsed since entry.
Service of Process
A judgment entered without proper service of the summons and complaint is void for lack of jurisdiction. An affidavit of service that is regular in form and substance is presumptively correct. The burden is on the person attacking service to show by clear and convincing evidence that service was improper.[4] Personal service may be made at a person’s place of usual abode with someone of suitable age and discretion then resident therein.[5] Myers’ evidence is not clear and convincing. Myers submitted declarations from himself and his mother claiming that he did not live at the address listed in the affidavit of service, and that “Art,” the individual served, was Cleotha Myers’ brother who did not reside there. He also submitted telephone bills in his name and the name of his business showing an address of 8305 37th Ave. S. But this does not prove that 3207 S. Byron was not a place of usual abode for Myers. Sheldon v. Fettig[6] is instructive. Fettig listed her parents’ address on her car registration and insurance, voter registration, the car’s bill of sale, and on a speeding ticket.[7] Service was made at that address. At the time of service, Fettig had resided in her own apartment in Chicago for eight months, but our Supreme Court held that the family home frequented by Fettig was a place of usual abode for her.[8] In so holding the court noted that under certain circumstances, a person may have more than one place of abode.[9] Service of process was proper, and the trial court did not err in refusing to vacate the default judgment on that basis.
AFFIRMED.
BAKER, ELLINGTON and AGID, JJ., concur.
(1998).