Opinion
Nos. 54536-1-I, 54786-1-I Consolidated Cases
Filed: April 25, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-34480-1. Judgment or order under review. Date filed: 05/07/2004. Judge signing: Hon. Gain Brian D.
Counsel for Defendant(s), Polly Becker Johnson, Helsell Fetterman LLP, 1001 4th Ave Plaza Ste 4200, Seattle, WA 98154.
Counsel for Appellant/Cross-Respondent, Christopher Michael Davis, Attorney at Law, 11061 NE 2nd St Ste 250, Bellevue, WA 98004-5892.
Counsel for Respondent/Cross-Appellant, David Jesse Bierman, Alexander Bierman PS, 4800 Aurora Ave N, Seattle, WA 98103-6518.
Counsel for Respondent/Cross-Appellant, Mistee R Verhulp Attorney at Law, 5723 W 15th Ave, Kennewick, WA 99338-2301.
Washington law provides that a plaintiff may serve a defendant directly in person or by serving an individual of suitable age and discretion at the house of the defendant's usual abode through substitute service. Anthony York's declaration filed in the trial court states that he has never lived at his sister's address. As there is no other evidence that proves York did live at this address, service on an individual at that address was improper, and the trial court erred in denying York's motion for reconsideration of the trial court's order denying a motion to vacate the default judgment. We reverse and dismiss.
FACTS
On February 2, 1998, Scott Wyatt was involved in an automobile accident when the car Anthony York was driving crossed the center line and hit Wyatt's car head-on. According to the police report, the car was owned by Andretta York, York's sister, who lived at 5619 South 150th Place in Tukwila, Washington. York reported to the police on the day of the accident that he lived at 1738 North Rainier, Bremerton, Washington.
Wyatt filed a summons and complaint against both Anthony and Andretta York on January 7, 2000. On February 4, 2000, NW/MDR PRO Process, Inc., acting on behalf of Wyatt, filed two postal traces. One requested "the new address or the name and street address" of "Anthony and/or Jane Doe York" and listed the address as 1738 North Rainier, Bremerton, Washington. This form has a postal service date stamp for February 9, 2000, and a line reading "Moved, No Forward" is checked. The second form requested "the new address or the name and street address" of "Anthony and/or Jane Doe York" and listed an address of 5619 South 150th Place, Tukwila, Washington. Although the form has no postal service date stamp, a line reading "Good As Addressed" is checked.
On June 3, 2000, an employee of NW/MDR wrote on a company work order that "Per sister s/o does not live here. This is kind of a mailing address. No idea where he lives." Also written on the form was the statement, "Do not reside here!" But an affidavit of service states that on June 18, 2000, Alex Conley III, a registered process server served the following document(s): SUMMONS and COMPLAINT FOR DAMAGES FROM INJURY TO PERSON, . . . upon Anthony York and Jane Doe York, by then and there delivering a true and correct copy(ies) of the above documents to Jane Doe, who is a resident of suitable age and discretion at the Defendant's usual place of abode and who did not wish to provide her name to the server upon knowledge of the documentation.
Wyatt obtained a default judgment against Anthony and Andretta York on August 18, 2000. Attorneys for the Yorks filed a notice of appearance in December 2000, reserving the defenses of lack of jurisdiction, insufficiency of process, and insufficiency of service of process. Anthony York filed a motion to vacate the default judgment on April 17, 2001; the trial court denied the motion. York filed a motion for reconsideration on May 11, 2001; the trial court did not rule on this motion. York refiled the motion to reconsider on May 10, 2004. The trial court denied the motion, stating, "It appears that Anthony York was itinerant and is itinerant to this day" and that York had "failed to show by clear and convincing evidence that the service was improper." York appeals.
DISCUSSION
York contends that the trial court erred in denying his motion for reconsideration to vacate the default judgment because service was void and the trial court did not have personal jurisdiction. Typically, we review a trial court's decision on a motion to vacate a default judgment for abuse of discretion. Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 323-24, 877 P.2d 724 (1994). But the question of whether the trial court had jurisdiction is one of law, which we review de novo. In re Marriage of Wilson, 117 Wn. App. 40, 45, 68 P.3d 1121 (2003).
Trial court jurisdiction is a basic requirement for litigation. Scott v. Goldman, 82 Wn. App. 1, 6, 917 P.2d 131 (1996). "When a trial court lacks in personam jurisdiction over a party, any judgment entered by the court against that party is void." Scott, 82 Wn. App. at 6. A motion to vacate a judgment based on lack of jurisdiction through faulty personal service may be made at any time, and the trial court has a nondiscretionary duty to grant the motion. In re Marriage of Markowski, 50 Wn. App. 633, 635-36, 749 P.2d 754 (1988).
An affidavit of service that is facially correct is presumed valid; a challenge to its validity must present clear and convincing evidence of an irregularity in the service. Vukich v. Anderson, 97 Wn. App. 684, 687, 985 P.2d 952 (1999) (citing Woodruff v. Spence, 88 Wn. App. 565, 571, 945 P.2d 745 (1997)).
In this case, York contends that service on him was void because he did not live at the Tukwila address where the affidavit of service states that the documents were left. Under RCW 4.28.080(15), service may be carried out by delivering the summons "to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein." The courts should construe the term "usual abode" liberally "to effectuate service and uphold the jurisdiction of the court;" the term denotes the "`center of one's domestic activity [such] that service left with a family member is reasonably calculated to come to one's attention within the statutory period for defendant to appear.'" Vukich, 97 Wn. App. at 687 (quoting Sheldon v. Fettig, 129 Wn.2d 601, 607, 609, 610, 919 P.2d 1209 (1996)).
Although as in Sheldon, service on a family member at an address may be sufficient if the defendant has repeatedly used that address as a place of contact so that it may be said to be a place of abode, it is not sufficient if there is no evidence that the defendant lived or maintained a household at the address at the time of service. Gross v. Evert-Rosenberg, 85 Wn. App. 539, 933 P.2d 439 (1997); Lepeska v. Farley, 67 Wn. App. 548, 833 P.2d 437 (1992).
The evidence in this case supports the conclusion that the Tukwila address was not York's usual place of abode and that service at that address was insufficient. The affidavit of service states that the documents were left at York's usual place of abode; however the mail trace that Wyatt relies on to establish this fact listed both York and "Jane Doe York." Since Andretta York did live at the address and the trace requested an address for either York himself or Jane Doe, the mail trace would be expected to show that it was good, because it was good as to Jane Doe, who was in fact Andretta York. The work order contradicts the affidavit in stating that "[p]er sister s/o does not live here . . . [n]o idea where he lives" and "[d]o not reside here!" And in his declaration, York states that he never lived at the Tukwila address. We conclude that service was insufficient and that the trial court did not have personal jurisdiction over Anthony York.
CONCLUSION
We reverse the trial court's order denying reconsideration and dismiss.
ELLINGTON and AGID, JJ., Concur.