Mark Hoffman, V. Daniel Logan

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
MARK HOFFMAN, ) No. 81887-2-I
)
Respondent, )
)
v. )
)
DANIEL LOGAN, )
)
Appellant. )
)
CAPITAL ADVANCE SOLUTIONS, )
LLC, CHARLES BETTA, GEOFFREY ) UNPUBLISHED OPINION
HORN, and JOHN DOES 1-10, )
)
Defendants. )
)

VERELLEN, J. — Mark Hoffman obtained a default judgment against Capital

Advance Solutions, LLC (Capital) and its officers, Charles Betta, Geoffrey Horn,

and Daniel Logan. The officers moved to vacate the judgment but the superior

court denied their request. Logan appeals, claiming the judgment is void as to him

for lack of personal jurisdiction and invalid service of process.1

Because Logan failed to establish the absence of personal jurisdiction and

defective service of process with clear and convincing evidence, the superior court

did not err in denying the motion under CR 60(b)(5). Therefore, we affirm.

1 Capital, Betta, and Horn are not parties to this appeal.
No. 81887-2-I/2

FACTS

In May 2018, Mark Hoffman commenced this civil action in King County

Superior Court against Daniel Logan. A process server handed Logan’s wife the

summons and complaint at Logan’s apartment located at 550 Cumberland Street

in Westfield, New Jersey. She handed them back to the process server and

closed the door. Neither Logan nor his wife would answer the door. The process

server “place[d] the summons and complaint under the door” and “repeatedly

yelled, ‘I am leaving the papers outside your door. You are being served.”2 The

process server also prepared an affidavit of service but did not swear to it before a

notary or court clerk as required under CR 4(g)(6).3

Hoffman’s complaint alleged that “the Funding Center,” at Logan’s direction

as Capital’s chief financial officer, made eight automated calls to his residential

cellular phone soliciting business loans in violation of the Telephone Consumer

Protection Act of 1991 (TCPA)4 and the Washington Telephone Solicitation Act

(WTSA).5 He also alleged his phone number had been on the “National Do Not

Call Registry” since 2007, and that:

Upon information and belief, Defendants Betta, Horn, and Logan had
direct, personal participation in causing the illegal telemarketing calls
alleged in this complaint to be made, and they directly authorized
these illegal telemarketing calls to be made. They failed to take
efforts to implement appropriate policies or procedures designed to
comply with the federal laws and regulations that are the basis for

2 Clerk’s Papers (CP) at 19.
3“In case of personal service out of the state,” under CR 4(g)(6), proof of
service shall be “the affidavit of the person making the service, sworn to before a
notary public, with a seal attached, or before a clerk of a court of record.”
4 47 U.S.C. § 227.
5 RCW 80.36.390.

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No. 81887-2-I/3

this cause of action. They authorized and ratified the illegal
telephone calls. They refused to alter their company’s business
practices and continued to place illegal prerecorded and automated
telephone calls to telephone consumers in violation of federal laws
after being sued at least 12 times in federal court since 2012 for
engaging in illegal telemarketing practices. Defendant Betta’s,
Horn’s, and Logan’s contacts with Washington state were and are
sufficient that they could reasonably anticipate being ha[i]led into
court here.[6]

In August 2018, more than 60 days after Logan failed to respond to the

summons or answer the complaint, Hoffman moved for an order of default. In

support of this motion, he filed declarations attesting to his efforts to serve Logan

and how service could not be made in Washington. He also filed the process

server’s affidavit. The superior court granted Hoffman’s motion, entered a default

judgment awarding him $25,042.47, and enjoined Logan from continuing to make

unsolicited telemarketing calls in Washington.

In August 2019, Hoffman assigned the judgment to James Shelton, who

resided in Pennsylvania.

In July 2020, Logan filed a motion in the superior court to vacate the default

under CR 60(b)(5), alleging the judgment was void for lack of personal jurisdiction,

defective service, and meritorious defenses. Logan supported this motion with a

declaration stating he (1) was “a resident of New Jersey,” (2) was “not affiliated

with any business” in Washington, (3) never owned property in Washington,

(4) had no relationship with Hoffman, (5) neither called nor directed Hoffman to be

6 CP at 3.

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No. 81887-2-I/4

called, and (6) “was not served personally and did not accept delivery of the

summons and complaint.”7

Shelton opposed Logan’s motion, arguing the affidavit of service

“documents in detail exactly what occurred during the service of process on

May 20, 2018,” specifically “that the process server handed the papers to Daniel

Logan’s wife and told her to give them to her husband, but she handed them back

to him, so he put them in a door jamb of their residence.”8 Shelton asserted “the

process server took photos of him walking towards Mrs. Logan to hand her the

papers, and later leaving them in the door jamb” and filed copies of the

photographs.9

After a hearing and supplemental briefing regarding individual liability of

Capital’s officers, the superior court denied Logan’s motion finding that Hoffman

“met the requirements for service of process and that no equitable basis for

vacating the default and default judgment exists under applicable law.”10

Logan, appearing pro se, appeals the denial of his CR 60(b) motion. 11

7 CP at 211-12.
8 CP at 283
9 CP at 283.
10 CP at 260.
11 Pro se litigants are held to the same standards as attorneys and must
comply with all procedural rules on appeal. In re Marriage of Olson, 69 Wn. App.
621, 626, 850 P.2d 527 (1993). While Logan attempts to argue on behalf of Betta
and Horn in his briefing to this court, we ignore those arguments because Logan
cannot represent anyone other than himself as a pro se litigant.

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No. 81887-2-I/5

ANALYSIS

A superior court may, upon a CR 60(b)(5) motion, relieve a party from a

final judgment if that judgment is void. A judgment entered without personal

jurisdiction of a party is void and a superior court does not have personal

jurisdiction over a party lacking minimum contacts in Washington or if service of

process was improper.12 “Because courts have a mandatory, nondiscretionary

duty to vacate void judgments, a trial court’s decision to grant or deny a CR 60(b)

motion to vacate a default judgment for want of jurisdiction is reviewed de novo.” 13

An appeal from the denial of a CR 60(b) motion is not a substitute for an

appeal from the final judgment, so our review is narrowed to the propriety of the

denial not the impropriety of the default judgment.14 Once a default judgment is

entered, the party challenging the judgment has the burden to show by clear and

convincing evidence that the judgment is void.15 Clear and convincing evidence

exists “when the evidence shows the ultimate fact at issue to be highly probable.”16

12In re Marriage of Markowski, 50 Wn. App. 633, 635-36, 749 P.2d 754
(1988); Powell v. Sphere Drake Ins. P.L.C., 97 Wn. App. 890, 899, 988 P.2d 12
(1999); RCW 4.28.185.
13 Dobbins v. Mendoza, 88 Wn. App. 862, 871, 947 P.2d 1229 (1997).
14 Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).
15 Woodruff v. Spence, 88 Wn. App. 565, 571, 945 P.2d 745 (1997) (“after
judgment is entered, the burden is on the person attacking the service to show by
clear and convincing evidence that the service was irregular”); see also Moss v.
Indus. Leasing Corp., 2005 WL 3050277 at *2-3 (E.D. Wash. 2005) (unpublished)
(federal district court applying Washington’s long-arm statute, concluding that the
defaulted party “bears the burden of refuting Plaintiffs’ allegations of minimum
contacts with the [s]tate of Washington by ‘compelling evidence’”).
16 In re Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999).

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I. Specific Personal Jurisdiction

Logan argues the default judgment against him was void for lack of specific

personal jurisdiction under Washington’s long-arm statute because he did not

have sufficient minimum contacts with this state.17 We disagree.

For purposes of determining jurisdiction under the long-arm statute, the

plaintiff bears the initial burden of making a prima facie showing of the

jurisdictional facts.18 Therefore, “the allegations in the plaintiff’s complaint must be

taken as correct.”19 Once that burden is met and default has been entered, the

burden shifts to the defendant who challenges jurisdiction in a motion to vacate to

refute the factual allegations with clear and convincing evidence. Thus, we

examine the record to see if Hoffman’s complaint alleges facts sufficient to invoke

Washington’s long-arm jurisdiction, then look to see if Logan presented convincing

evidence to refute them.

“Washington’s long-arm statute, RCW 4.28.185, authorizes the court to

exercise jurisdiction over a nonresident defendant to the extent permitted by the

due process clause of the United States Constitution.”20 Our courts “may exercise

17 Logan also claims the superior court lacked general jurisdiction over him
under RCW 4.28.080(10), but we need not address this claim as general
jurisdiction was not the basis upon which Hoffman asserted Washington’s
jurisdiction in this action.
18
SeaHAVN, Ltd. v. Glitnir Bank, 154 Wn. App. 550, 563, 226 P.3d 141
(2010) (citing CTVC of Hawaii Co., Ltd. v. Shinawatra, 82 Wn. App. 699, 707, 919
P.2d 1243 (1996)).
19
Walker v. Bonney-Watson Co., 64 Wn. App. 27, 33, 823 P.2d 518 (1992)
(citing MBM Fisheries, Inc. v. Bollinger Machine Shop and Shipyard, Inc., 60 Wn.
App. 414, 418, 804 P.2d 627 (1991)).
20 SeaHAVN, 154 Wn. App. at 563 (citing MBM Fisheries, 60 Wn. App. at
423.)

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No. 81887-2-I/7

specific jurisdiction over a nonresident defendant when the defendant’s limited

contacts give rise to the cause of action.”21 Here, Hoffman alleged Washington

had specific jurisdiction over Logan, as authorized by RCW 4.28.185, because

Logan transacted business and committed tortious acts in Washington. The long-

arm statute provides in pertinent part:

(1) Any person, whether or not a citizen or resident of this
state, who in person or through an agent does any of the acts in this
section enumerated, thereby submits said person . . . to the
jurisdiction of the courts of this state as to any cause of action arising
from the doing of any said acts:

(a) The transaction of any business within this state;

(b) The commission of a tortious act within this state;

....

(3) Only causes of action arising from acts enumerated
herein may be asserted against a defendant in an action in which
jurisdiction over him or her is based upon this section.[22]

Washington courts apply the following three-prong test in determining

whether to exercise personal jurisdiction over a nonresident defendant under

RCW 4.28.185:

(1) The nonresident defendant or foreign corporation must
purposefully do some act or consummate some transaction in the
forum state;

(2) the cause of action must arise from, or be connected with,
such act or transaction; and

(3) the assumption of jurisdiction by the forum state must not
offend traditional notions of fair play and substantial justice,
consideration being given to the quality, nature, and extent of the

21CTVC of Hawaii, 82 Wn. App. at 709 (citing MBM Fisheries, 60 Wn. App.
at 422-23).
22 RCW 4.28.185(1), (3).

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No. 81887-2-I/8

activity in the forum state, the relative convenience of the parties, the
benefits and protection of the laws of the forum state afforded the
respective parties, and the basic equities of the situation.[23]

A. Purposeful Acts

“A plaintiff can establish purposeful availment by showing the initiation of a

transaction outside the state ‘in contemplation that some phase of it will take place

in the forum state.’”24 Hoffman claimed Logan, as Capital’s chief financial officer,

authorized “the Funding Center” to make “the illegal telemarketing calls” to his

Washington-based cellular phone number to solicit business loans.25 Drawing

inferences in Hoffman’s favor, as we must, Logan’s knowledge that Washington

phone numbers were being called suffices to satisfy the first prong of the

jurisdictional test.

With his motion to vacate, Logan attached a declaration stating that he did

not call Hoffman, did not direct that Hoffman be called, and was not aware of any

call being made to Hoffman. But he said nothing about his relationship with, or his

ability to control, the Funding Center’s activities. Moreover, Logan did not provide

any evidence to refute Hoffman’s allegation that the Funding Center called

Washington-based telephone numbers at his direction. “When a party fails to

produce relevant evidence within its control, without satisfactory explanation, the

23Shute v. Carnival Cruise Lines, 113 Wn.2d 763, 767, 783 P.2d 78 (1989)
(quoting Deutsch v. West Coast Mach. Co., 80 Wn.2d 707, 711, 497 P.2d 1311
(1972)).
24 SeaHAVN, 154 Wn. App. at 565 (quoting CTVC of Hawaii, 82 Wn. App.
at 711).
25 CP at 3, 8-9.

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No. 81887-2-I/9

inference is that such evidence would be unfavorable to the nonproducing party.” 26

Thus, we draw a reasonable adverse inference from Logan’s failure to produce

such evidence, and conclude that evidence exists showing Logan did have the

authority to control the Funding Center’s activities including telephone soliciting

Washington residents for purposes of transacting business in this state.

Hoffman also alleged Logan purposely acted in Washington by committing

tortious acts in this state, claiming Logan was personally liable under the TCPA. A

tort “occurs in Washington when the injury occurs within our state”27 and “[a]n

injury ‘occurs’ in Washington for purposes of the long-arm statute, ‘if the last event

necessary to make the defendant liable for the alleged tort occurred in

Washington.’”28

To maintain a claim under the TCPA, the plaintiff must establish three

elements: “(1) the defendant called a cellular telephone number; (2) using an

automated telephone dialing system; [and] (3) without the recipient’s prior express

consent.”29 Here, the complaint alleged that Logan “authorized and ratified the

illegal telephone calls,” Logan “refused to alter [Capital’s] business practices and

continued to place illegal prerecorded and automated telephone calls to telephone

consumers in violation of federal laws,” and Hoffman “never provided prior express

Lynott v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 123 Wn.2d 678, 689,
26

871 P.2d 146 (1994) (citing Pier 67, Inc. v. King County, 89 Wn.2d 379, 385-86,
573 P.2d 2 (1977)).
SeaHAVN, 154 Wn. App. at 569 (citing Grange Ins. Ass’n v. State, 110
27

Wn.2d 752, 757, 757 P.2d 933 (1988)).
28 Id. (quoting MBM Fisheries, 60 Wn. App. at 425).
29Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir.
2012) (citing 47 U.S.C. § 227(b)(1)).

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No. 81887-2-I/10

written consent or any other kind of consent to receive telemarketing calls made

by or on behalf of Defendants.”30

The “last event necessary” allegedly occurred when the Funding Center, at

Logan’s direction, made automated calls to Hoffman’s cellular phone in

Washington.31 Logan did not present any evidence to refute the alleged TCPA

violation occurred in Washington.

Instead, Logan argued the complaint did not allege sufficient facts to

impose personal liability onto him.32 But Logan’s argument ignores that

“[i]ndividuals who directly . . . violate the TCPA should not escape liability solely

because they are corporate officers” and a corporate officer is deemed to have

“made” a call, and thus liable under the TCPA, if the officer “had direct, personal

participation in or personally authorized the conduct found to have violated the

statute.”33 His argument also ignores that Washington courts extend personal

liability to corporate officers who supervised, directed, or approved wrongful

business conduct.34

30 CP at 3, 8.
31For this reason, we conclude the fact that Hoffman made a return call to
the Funding Center, who then transferred him to “the sales manager at Capital” is
of no consequence in determining jurisdiction over Logan. CP at 9.
32Though the parties filed supplemental briefing at the superior court’s
request following the hearing on Logan’s motion to vacate, we note Logan did not
designate his supplemental brief as part of the record on appeal. Therefore, we
do not have the benefit of reviewing any additional arguments he may have
asserted below on this issue.
33 Texas v. Am. Blastfax, Inc., 164 F. Supp. 2d 892, 898 (W.D. Tex. 2001).
34 Grayson v. Nordic Constr. Co., 92 Wn.2d 548, 554, 599 P.2d 1271 (1979)
(“if a corporate officer participates in wrongful conduct or with knowledge approves

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No. 81887-2-I/11

Again, viewing the allegations in Hoffman’s favor, we conclude that the

complaint raised a prima facie claim for relief under the TCPA and established the

first prong of the jurisdictional test. And Logan did not establish facts to the

contrary in his motion to vacate.

B. Forum-Related Conduct

Under the second prong of the jurisdictional test, “[j]urisdiction is proper if

the events giving rise to the claim would not have occurred ‘but for’ the solicitation

of business in the forum state.”35 It is undisputed that this cause of action arose

out of the alleged calls Hoffman received from the Funding Center at the direction

of Logan. But for those calls, Hoffman would not have suffered any injuries the

TCPA and WSTA were enacted to prevent. Hoffman’s allegations satisfied the

second prong of the test, and Logan offered no evidence to refute them.

C. Fair Play and Substantial Justice

The final prong in determining whether long-arm jurisdiction is appropriate

requires consideration of the quality, nature, and extent of Logan’s activities in

Washington, the relative convenience of maintaining the action here, the benefits

Washington law affords, and the basic equities.36

Hoffman specifically alleged “Logan’s contacts with Washington state were

and are sufficient that [he] could reasonably anticipate being ha[i]led into court

of the conduct, then the officer as well as the corporation, is liable for the
penalties”).
35 SeaHAVN, 154 Wn. App. at 571 (quoting CTVC of Hawaii, 82 Wn. App.
at 719).
36 Shute, 113 Wn.2d at 767 (quoting RCW 4.28.185).

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No. 81887-2-I/12

here.”37 But in the declaration used to support his motion to vacate, Logan did not

assert any facts or present any evidence to counter Hoffman’s allegation. In other

words, Logan failed to articulate how or why defending himself against this action

in Washington offends traditional notions of fair play and substantial justice.

Accordingly, we conclude Logan had sufficient minimum contacts with

Washington for the superior court to obtain specific personal jurisdiction. The

superior court did not err in denying Logan’s motion to vacate the default judgment

on this ground.

II. Service of Process

Logan contends he was not properly served with the summons and

complaint, so the default judgment against him is void for lack of personal

jurisdiction. But because he failed to establish defective service of process, we

disagree.

In order to obtain jurisdiction over nonresident defendants, the long-arm

statute requires personal service on them.38 Personal service of the 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.39

37 CP at 3.
38 RCW 4.28.185(2) reads: “Service of process upon any person who is
subject to the jurisdiction of the courts of this state, as provided in this section,
may be made by personally serving the defendant outside this state, as provided
in RCW 4.28.180, with the same force and effect as though personally served
within this state.”
39 RCW 4.28.080(16).

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No. 81887-2-I/13

Here, the process server prepared an affidavit setting forth the manner in

which he served Logan on May 20, 2018. The affidavit states in pertinent part:

When I arrived, a woman on the porch said she was Dan
[Logan’s] wife. I told her that I had some papers to deliver to Dan.
She seemed very suspicious of me. I then asked if Dan was home.
She started to say yes and looked towards the house, but stopped
mid-sentence and said he wasn’t there. I suspected she was lying
and that Dan was really home. I asked what her name was, however
I already knew her name is Deidre. She would not give it to me. I
followed her to the door and handed her the papers, and told her that
she needed to give the summons and complaint to her husband Dan
who has been named as a defendant in a lawsuit. She gave the
papers back to me. I told her that she either needed to get Dan to
come and accept the papers, or she would need to accept the
papers on her husband’s behalf. She refused, went back inside, and
locked the door. I knocked on the door for several minutes and no
one answered.

I called the police department to give them a heads-up that I
was trying to serve legal paperwork. Officer Vagan . . . of the
Westfield Police Department arrived. The officer knocked on the
door and yelled “police department” but no one answered. It was
obvious that the defendants were [sic] avoiding service. The door to
the defendant’s apartment unit is inside the physical house. After
knocking on the door for approximately 15 minutes, I decided to
place the summons and complaint under the door to . . . Daniel
Logan’s unit. I repeatedly yelled “I am leaving the papers outside
your door. You are being served.”[40]

Below, in the motion to vacate proceeding, Logan’s declaration said the

following on the issue of service: “I was not served personally and did not accept

delivery of the summons and complaint.”41 But Logan’s statement is general and

conclusory. It is not convincing evidence of defective service. In his briefing to

this court, however, Logan claims:

40 CP at 19.
41 CP at 216.

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No. 81887-2-I/14

[He] was not served personally because at the time, as now,
he was not on speaking terms with his ex-wife. He and his wife were
separated at the time, the divorce becoming final in July 2018. She
did not accept service and legally was not obligated to, since she did
not reside with Logan at the time. She almost certainly made this
clear to the process server. Regardless, the process server,
according to his own records, did not serve her.[42]

We are unpersuaded by Logan’s claim because it appears nowhere in the

record and there is no indication that he raised this claim for the superior court to

consider.43 Moreover, we conclude the affidavit of service establishes that Logan

actually received service of process.

Under RCW 4.28.080, a process server accomplishes personal service if

there is a clear attempt to yield possession and control of the documents to the

person being served. In United Pacific Insurance Co. v. Discount Co., the court

held that defendant was served properly after the process server attempted to

hand the documents to the defendant, but she evaded accepting them by

slamming the door. 44 This case is similar to United Pacific in that the process

server here attempted to yield possession and control of the documents personally

to Logan’s wife, but she affirmatively refused. Therefore, service of process was

sufficient under RCW 4.28.080(16).

Logan also argues the affidavit of service in this case was not notarized as

required by CR 4(g)(6), therefore it was deficient, rendered service improper, and

invalidated personal jurisdiction. While he is correct that the affidavit does not

42 Appellant’s Br. at 35.
43 We decline to consider Logan’s factual assertions that are not supported
by citations to the record. See RAP 10.3(a)(5).
44 15 Wn. App. 559, 561-62, 550 P.2d 699 (1976).

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comport with the civil rules, this fact alone does not affect the validity of service of

process upon him.45 This is so because “[i]t is the fact of service that confers

jurisdiction, not the return, and the latter may be amended to speak the truth.”46

And as we have already determined, Logan was properly served with the

summons and complaint in this action.

The superior court properly denied the motion to vacate on the grounds of

insufficient service of process.

We affirm.

WE CONCUR:

45 CR 4(g)(7) reads: “In case of service otherwise than by publication, the
return, acceptance, admission, or affidavit must state the time, place, and manner
of service. Failure to make proof of service does not affect the validity of the
service.”
Williams v. Steamship Mut. Underwriting Ass’n, 45 Wn.2d 209, 227, 273
46

P.2d 803 (1954).

15