Opinion
No. 52296-5-I.
Filed: April 19, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No: 02-2-01334-4. Judgment or order under review. Date filed: 04/11/2003. Judge signing: Hon. Michael E Rickert.
Counsel for Appellant(s), Daniel Thomas Parsons, Roy Simmons PS, 114 W Magnolia St. Ste 201, Bellingham, WA 98225-4354.
Eric Edmond Roy, Attorney at Law, 114 W Magnolia St. Ste 201, Bellingham, WA 98225-4354.
Counsel for Respondent(s), Dennis Adrian Kole, Robinson Kole PS Inc, 911 Dupont St. Bellingham, WA 98225-3192.
David W Robinson, Robinson Kole PS INC, 911 Dupont St. Bellingham, WA 98225-3192.
Counsel for Respondent Intervenor(s), William J Blitz, Office of the Attorney General, PO Box 40121, Olympia, WA 98504-0121.
We accepted discretionary review to determine whether the trial court erred in concluding that the defendant was properly served by publication and in denying the defendant's motion to dismiss. Because the evidence does not support a finding that the defendant was attempting to conceal himself with the intent to avoid service of process or to defraud creditors, we conclude that service by publication was improper. We therefore reverse the order denying the defendant's motion to dismiss, and remand for entry of an order of dismissal.
FACTS
On November 10, 1999, Joshua Phair and Simon Larson were involved in an automobile collision in Skagit County. At that time, Phair gave the investigating officer his name, date of birth, and an address in Anacortes, Washington. Larson filed a complaint against Phair in Skagit County Superior Court on September 5, 2002. On November 25, 2002, Larson's attorney filed a motion seeking authorization to serve Phair by publication. In support of that motion, Larson filed three declarations indicating that attempts to locate Phair had been unsuccessful.
The first declaration, from Larson's attorney, stated that process servers were unable to locate Phair, and that there was 'no proof that the defendant has moved outside the State of Washington. Therefore, publication in Skagit County is appropriate.' Larson's attorney's declaration did not allege that Phair was concealing himself to defraud creditors or to avoid service of process.
Clerk's Papers at 8.
The second declaration was from Robin K. Mullins, who indicated that she was the supervisor of the process servers who attempted to serve Phair. According to Mullins, a process server named Nicole Hammond reported that she went to the address provided by Phair on September 6, 2002, and a neighbor told Hammond that Phair had 'moved out a long time ago.' Mullins also claimed that on September 8, 2002, she had personally conducted a series of searches through 'several third party databases' that included information from credit bureaus, the State's DISCIS system, computer records, and 'a variety of other public and proprietary sources.' Mullins' declaration went on to state:
Clerk's Papers at 10.
Clerk's Paper's at 10.
I found that credit header records relating to the defendant were mixed with the records of several other people around the country and that the defendant's name was associated with several different Social Security Numbers. An address of 1516-9th St., Anacortes, was found for the defendant.
Clerk's Papers at 10.
Mullins stated that process servers went to this second Anacortes address on two occasions, but no one answered the door. A third server went to the address and spoke with a woman who claimed to be Phair's mother. The woman told the server that she had not seen Phair in two years.
On September 25, 2002, Mullins again reviewed the file, and at that time she 'noted an address reported for the defendant at 27400-132nd Ave. SE, Kent, WA, with report dates very similar to those reported for the Anacortes address.' On November 24, 2002, Mullins again reviewed the file, and 'conducted more searches of a variety of databases reasonably calculated to learn the location of the defendant.' According to her declaration, also signed on November 24, 2002, Mullins found no new address information for Phair.
Clerk's Papers at 11.
Clerk's Papers at 11.
The third declaration was from the King County process server referenced in Mullins' declaration, Padraic Mahoney. According to Mahoney's declaration, he was given the summons and complaint and went to the Kent address: I then attempted to serve the defendant at this address, but found that this address is the County Glenn Apartments which has several buildings with several hundred apartments all with the above address. The managers of these apartments refuse to give me any information regarding the tenants here.
I then sent a Request for Change of Address form to the postmaster for the address above requesting the apartment number for the defendant if the address above is the defendant's address. I received a response from the postmaster showing the defendant is unknown to the mail carrier for the address above.
Clerk's Papers at 12.
Neither Mullins' nor Mahoney's declarations alleged that Phair was concealing himself with the intent to defraud creditors or avoid service. Nonetheless, on November 27, 2002, a Skagit County Superior Court judge signed an order authorizing service by publication. Thereafter, Larson apparently attempted service by publication, although the record is not altogether clear on this point.
On March 3, 2003, Phair filed a motion to dismiss, arguing that service by publication was improper because none of the circumstances enumerated in RCW 4.28.100 were present. Specifically, Phair noted that the declarations filed by Larson did not allege that Phair had departed from the state or concealed himself within the state to defraud creditors or to avoid service of process as provided in RCW 4.28.100(2).
In response, Larson filed a second declaration from Mullins. Mullins stated that when she ran the search on September 8, 2002, she entered the names of Joshua Phair and Joshua D. Phair, and that she found three different social security numbers associated with the name. She then checked the social security numbers through credit bureau files. Mullins indicated that one of the social security numbers appeared to have no connection to the defendant.
The other two numbers were off by only one digit, and each of these had an address associated with it. The first was associated with the address that turned out to be that of Phair's mother. The second was associated with the Kent address at which service was unsuccessfully attempted. Mullins stated that:
[T]here are times when there may be more than one social security number identified with a particular name due to incorrect data entry, either by way of clerical error, or because of incorrect reporting of the social security number by the individual in credit applications. In such cases, I anticipate that the two numbers are likely to be relatively similar.
Clerk's Papers at 23.
Mullins also noted that when she ran the two similar numbers through credit bureau header files, each number generated several other names, and that these names were associated with addresses throughout the northwest, both inside and outside the state.
Mullins' declaration does not fully explain what it means for a social security number to 'generate' another name, or how the addresses were 'associated' with different addresses. She does, however, note that: It is relatively uncommon to have multiple names and social security numbers being produced in checks run with the credit bureau header files. Based upon my experience, I would estimate that this happens approximately 10% to 20% of the time. Examples would include when a social security number is being 'sold' for use by illegal aliens. In addition, multiple listings would be generated if an individual were intentionally submitting inaccurate social security numbers in connection with applications being processed through the credit bureaus.
Clerk's Papers at 24-25.
The trial court denied Phair's motion to dismiss. A commissioner of this court granted discretionary review pursuant to RAP 2.3(b).
DISCUSSION
The sole issue before us is whether the trial court properly found that service by publication was valid. We review the trial court's determination de novo. Bruff v. Main, 87 Wn. App. 609, 611, 943 P.2d 295 (1997).
As a general rule in Washington, personal judgments cannot be entered pursuant to service by publication. In re Marriage of Johnston, 33 Wn. App. 178, 179, 653 P.2d 1329 (1982) (citing Clifford v. Pateros Transfer Co., 71 Wn. 665, 129 P. 369 (1913)); Hays v. Peavey, 54 Wn. 78, 102 P. 889 (1909); Paxton v. Daniell, 1 Wn. 19, 23 P. 441 (1890). A limited statutory exception to this general rule is found in RCW 4.28.100(2), which authorizes service by publication when a defendant, 'being a resident of this state, has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent.' The words 'conceal or concealment' is defined as a 'clandestine or secret removal from a known address.' Caouette v. Martinez, 71 Wn. App. 69, 74, 856 P.2d 725 (1993). Service by publication is in derogation of the common law, so strict compliance with the statute authorizing service by publication is required. Dobbins v. Mendoza, 88 Wn. App. 862, 871, 947 P.2d 1229 (1997). To satisfy RCW 4.28.100(2), the plaintiff, his agent, or attorney must file an affidavit establishing that the defendant cannot be found in the state, and that he or she has left the state or concealed him or herself to avoid service or to defraud creditors. Service by publication is authorized only upon the filing of such an affidavit. In an affidavit, '[a] bare recitation of these factors is insufficient. The conclusions are required, but so are the facts supporting the conclusions.' In re Marriage of Logg, 74 Wn. App. 781, 785, 875 P.2d 647 (1994).
The declarations submitted by the plaintiff prior to attempting service by publication clearly do not comply with the statute. The declaration filed by plaintiff's counsel, supported by declarations from two process servers, states that the process servers were unable to locate or serve Phair despite diligent efforts. But the declaration specifically states that '[w]e have no proof that the defendant has moved outside of the State of Washington,' and the declaration does not allege that Phair concealed himself to avoid process or to defraud creditors, and indeed makes no reference to this statutory requirement. 'At least one of the eight factual scenarios enumerated in RCW 4.28.100 to which publication applies must be recited in the affidavit.' Logg, 74 Wn. App. at 786. 'An affidavit that omits the essential statutory elements is as good as no affidavit at all.' Kent v. Lee, 52 Wn. App. 576, 579, 762 P.2d 24 (1988). Nor do the supplemental affidavits filed in response to Phair's motion to dismiss raise an inference that Phair concealed himself with the intent to avoid service of process or to defraud creditors. As Larson acknowledges, the facts of this case are remarkably similar to those of Bruff v. Main, 87 Wn. App. 609, 943 P.2d 295 (1997). As here, Bruff involved an automobile accident between two strangers. And in Bruff, as in this case, the plaintiff was unable to locate the defendant, and the defendant's parent was unaware of the defendant's whereabouts. Like Phair, the defendant in Bruff was apparently unaware of the lawsuit filed against him. Unlike Phair, the defendant in Bruff had apparently provided a false address to police, and had a documented history of credit problems. The court in Bruff held that these facts were insufficient to support a reasonable inference the defendant was concealing himself within the state with the intent to defraud creditors or to avoid process.
Clerk's Papers at 8.
Larson attempts to distinguish Bruff, arguing that Mullins' second declaration raises the inference of concealment based on the fact that several social security numbers were associated with Phair's name, and/or the fact that several names were associated with Phair's social security number. We disagree.
While three social security numbers were associated with the names Joshua Phair and Joshua D. Phair, Mullins herself stated that one of the numbers Swas not further pursued, as it did not appear to have any connection with the defendant in this matter.' The other two numbers were only off by one digit, and Mullins acknowledged in her declaration that this was likely due to clerical error.
Clerk's Papers at 24.
While multiple names were associated with the two similar social security numbers, neither Mullins' declaration nor anything else in the record supports an inference that this was due to Phair attempting to conceal himself. As Larson acknowledges, nothing in the record suggests that Phair sold his social security number to illegal aliens, nor does Larson argue that doing so would give rise to an inference that Phair was attempting to avoid service or defraud creditors under RCW 4.28.100.
Mullins also claimed that multiple names may be associated with a social security number if an individual were providing inaccurate social security numbers. As a preliminary matter, we note that neither of the declarations submitted by Mullins give any information about the nature and extent of her background, experience, or qualifications, or on what she bases her opinion. Moreover, Mullins does not explain how an individual's submission of inaccurate social security numbers in a credit application would result in multiple names being associated with his or her true social security number.
The facts presented here are less indicative of concealment than those in Bruff. For example, the defendant in Bruff, unlike Phair, had a history of credit troubles, and had apparently initially provided the police with a false address. Here, as in Bruff, the declarations 'contained no facts clearly suggesting that [the defendant's] change of residence, or any other conduct, was undertaken with the intent required by RCW 4.28.100(2)' Bruff, 87 Wn. App. at 614.
Larson argues that public policy would be better served by allowing service by service by publication under the facts of this case. These arguments are better directed to, and indeed have been directed to, the Legislature. As Larson points out, RCW 46.64.040, the non-resident motorist statute, was amended in 2003 to allow substitute service under circumstances similar to those presented by this case. But those amendments are not retroactive, and RCW 4.28.100 was not similarly amended in any event. RCW 4.28.100 does not allow for service by publication under the facts presented by this case.
Reversed.
ELLINGTON and BAKER, JJ., concur.