IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
EGP INVESTMENTS, LLC, a
Washington limited liability company, No. 69535-5-
Appellant, DIVISION ONE
ERIC A. ANDREWS, Personal
Representative of the Estate of UNPUBLISHED OPINION
JENNIFER LUND,
FILED: October 28, 2013
Respondent.
Becker, J. — Collections company EGP Investments LLC appeals the
order dismissing its lawsuit against a deceased debtor's estate for insufficient
service of process. Under a Washington statute, service is effective if the
summons and complaint are left at the defendant's residence with a person of
suitable age and discretion who resides there. Here, the record shows that EGP
Investments left the summons and complaint with someone who did not reside at
the defendant's home and was merely doing yard work at the adjacent property.
Because the defendant was not properly served, we affirm the order of dismissal.
FACTS
Before her death, Jennifer Lund had a revolving charge account with
Chase Bank USA, N.A. EGP Investments purchased the charge account after it
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went into default. Lund died on April 7, 2011. Her husband, Eric Andrews, was
appointed personal representative of her estate. On February 6, 2012, EGP
Investments filed a creditor's claim, asserting Lund owed more than $25,000,
plus interest and attorney fees, on the account. Andrews rejected the claim as
untimely.
On March 22, 2012, EGP Investments filed suit against Andrews as
personal representative of Lund's estate for wrongful rejection of the creditor's
claim. Under RCW 4.16.170, the company had 90 days from the date of filing to
properly serve Andrews. In his declaration of service, process server Mario
Robledo stated he served Andrews on May 30, 2012, by leaving the summons
and complaint at Andrews' residence in Gold Bar, Washington, with a "John Doe,
co-resident, being a person of suitable age and discretion, who is a resident
therein." Robledo described the person as a white man in his twenties with black
hair, who is 5 feet 11 inches tall and 150 pounds. His declaration did not say that
the John Doe claimed he was a resident. Nor did it provide any other basis for
the assertion that John Doe was a "resident therein."
On July 12, 2012, after the 90-day period for service expired, Andrews
filed a motion to dismiss EGP Investments' lawsuit for improper service.
Andrews asserted he had not been personally served and lived only with his girl
friend. He argued EGP Investments failed to effect service because the
summons and complaint had been left with Brad Domhoff, an acquaintance who
was working as a landscaper on the property next door and did not reside with
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Andrews. Andrews' declaration said Domhoff eventually gave him the complaint,
but Andrews did not state the date when this occurred or otherwise indicate that
it occurred within the 90-day period. Andrews submitted a declaration from
Domhoff, who said he had never lived with Andrews or claimed to, but had
accepted the papers from the process server.
EGP Investments filed a response opposing dismissal, supported by
declarations. Laura Meas, Robledo's manager, stated that Domhoff had told a
process server that he lived with Andrews. Howard Andreasen, another process
server, stated he had been informed by Domhoffs former roommates that
Domhoff had moved out of the Monroe address he had given as his residence.
EGP Investments did not file declarations from the process server Meas referred
to or from the individuals Andreasen interviewed. Thus, the statements reported
in their declarations were hearsay.
Andrews filed a motion to strike the hearsay statements in the declarations
by Meas and Andreasen. Andrews also submitted a supplemental declaration
from Domhoff and from Domhoffs former roommate.
On July 20, 2012, the trial court considered the evidence, granted
Andrews' motion to dismiss for failure to timely serve, and granted in part his
motion to strike. EGP Investments claims its attorney requested that the court
hold an evidentiary hearing, but no such request is documented in the record.
There is no report of the hearing.
On August 1, 2012, EGP Investments filed a motion for reconsideration
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under CR 59. In support of this motion, the company submitted new declarations
from process server Robledo and from Andreasen, among other evidence.
Andrews filed a motion to strike the company's newly submitted evidence as
containing hearsay and lacking foundation, including the alleged criminal
histories of Domhoff and his former roommate. The trial court denied EGP
Investments' motion for reconsideration and granted Andrews' motion to strike
statements from the newly submitted declarations. This appeal followed.
DISCUSSION
EGP Investments challenges the order dismissing the complaint, the order
denying the motion for reconsideration, and the orders striking evidence.
Proper service of the summons and complaint is a prerequisite to the trial
court obtaining personal jurisdiction over a party. Streeter-Dvbdahl v. Huvnh,
157 Wn. App. 408, 412, 236 P.3d 986 (2010), review denied. 170 Wn.2d 1026
(2011). Whether service of process was proper is a question of law this court
reviews de novo. Streeter-Dvbdahl. 157 Wn. App. at 412.
The plaintiff has the initial burden of proof to establish a prima facie case
of sufficient service. Streeter-Dvbdahl. 157 Wn. App. at 412. An affidavit of
service that is regular in form and substance is presumptively correct. Lee v. W.
Processing Co.. 35 Wn. App. 466, 469, 667 P.2d 638 (1983). The burden then
shifts to the person challenging service to show by clear and convincing evidence
that service was improper. Leen v. Demopolis. 62 Wn. App. 473, 478, 815 P.2d
269 (1991), review denied. 118 Wn.2d 1022 (1992). But see Farmer v. Davis.
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161 Wn. App. 420, 428-30, 250 P.3d 138 (refusing to apply heightened burden of
proof to defendant where no judgment was being attacked), review denied. 172
Wn.2d 1019 (2011).
The statutory requirements for service provide that "summons shall be
served by delivering a copy thereof... 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." RCW 4.28.080(15).
Here, there is no claim that Andrews was served by delivery of the
summons and complaint to him personally. EGP Investments offered the
process server's declaration that he served a co-resident. This was prima facie
proof of sufficient service. Itwas rebutted by proof that the person served, Brad
Domhoff, did not live with Andrews. EGP Investments then submitted statements
in an attempt to cast doubt on the credibility of Domhoffs assertion that he did
not live with Andrews. The statements are unavailing, not only because they are
hearsay but also because they fail to show that Domhoff ever resided with
Andrews. Notably, there is no testimony by Robledo explaining why, in his
original declaration of service, he referred to "John Doe" as a "co-resident." On
this record, Andrews met his burden to show he was not properly served.
EGP Investments contends the trial court erred by failing to hold an
evidentiary hearing to resolve issues of fact that turned on the credibility of the
witnesses. The company asserts that its attorney orally requested such a
hearing. There is no record that EGP Investments asked for an evidentiary
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hearing, so the issue was not preserved for review.
EGP Investments has asked this court to take additional evidence on the
topic of whether its attorney requested an evidentiary hearing. The evidence
consists of two declarations. The company's attorney states, "To the best of my
recollection, I requested an evidentiary hearing." The company's manager states
that although he was not present, he had instructed the attorney to request an
evidentiary hearing and it was his "understanding" the attorney did so but was
denied. These two declarations do not meet the six criteria of RAP 9.11 for
taking additional evidence on appeal. We deny the motion.
There was no need for the trial court to hold an evidentiary hearing even if
one had been requested. Much of EGP Investments' evidence was inadmissible
hearsay. None of it proved that Domhoff resided with Andrews. Therefore, there
were no factual issues that an evidentiary hearing would have helped to resolve.
EGP Investments argues the trial court erred when it struck portions of the
declaration of Laura Meas, the process server manager. Meas declared that her
process server asked the man to whom the papers were given if he was a
resident at the address, and the man said yes. This statement was properly
stricken as hearsay. Meas was not the process server who attempted to serve
Andrews. She had no firsthand knowledge of what was said by the man who
received the papers.
EGP Investments moved for reconsideration on four grounds. First, the
company asserts that the trial court's decision to strike portions of Meas'
6
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declaration and its failure to hold an evidentiary hearing were irregularities that
justify setting aside the dismissal. Neither constitutes an irregularity in the
proceedings as contemplated by CR 59(a)(1).
Second, EGP Investments alleges reconsideration was warranted under
CR 59(a)(2) due to misconduct of the prevailing party. The purported misconduct
is primarily based on the company's allegation that Domhoff and his roommate
have past convictions for theft. But EGP Investments has provided no evidence
of misconduct by Andrews, the prevailing party.
Third, EGP Investments argues the trial court should have granted
reconsideration on the ground of newly discovered evidence, CR 59(a)(4). The
company fails to show that any of its additional evidence is material, could not
have been discovered with reasonable diligence and produced at the hearing, or
would change the result. See Go2Net. Inc. v. CI Host. Inc.. 115 Wn. App. 73, 88-
89, 60 P.3d 1245 (2003).
Finally, the company argues that substantial justice was not done. See
CR 59(a)(9). There is no basis for such a conclusion.
When the trier of fact has weighed the evidence and determined whether it
meets the applicable standard, our review is limited to determining whether
substantial evidence supports the facts as found. See Bland v. Mentor. 63
Wn.2d 150, 154, 385 P.2d 727 (1963). Based on the record before us, we
conclude the evidence supported the trial court's ruling that EGP Investments
failed to serve Andrews. The trial court correctly dismissed EGP Investments'
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suit for lack of personal jurisdiction over Andrews.
Andrews requests an award of attorney fees on appeal pursuant to RCW
11.96A.150 and RAP 18.1(a). We exercise our discretion to award Andrews fees
on appeal against EGP Investments, upon proper application. See In re Estate
of Fitzgerald, 172 Wn. App. 437, 453-54, 294 P.3d 720 (2012) (awarding attorney
fees to estate where it was forced to defend against creditor's meritless claims),
review denied. 177Wn.2d 1014(2013).
Affirmed.
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