Pascua v. Heil

¶23 (dissenting) — I believe the trial court acted within its broad discretion when it granted Pascua’s unopposed motion to amend nunc pro tunc. As such, I respectfully dissent.

Houghton, J.,

¶24 RCW 4.28.100 governs service by publication. For purposes of RCW 4.28.100(2), the plaintiff must establish “(1) that his efforts to personally serve the [resident] defendant were reasonably diligent, and (2) that the defendant either (a) left the state with intent to defraud creditors or avoid service, or (b) concealed himself within the state with intent to defraud creditors or to avoid service.” Charboneau Excavating, Inc. v. Turnipseed, 118 Wn. App. 358, 362-63, 75 P.3d 1011 (2003) (footnote omitted), review denied, 151 Wn.2d 1020 (2004).

¶25 The mere recitation of these statutory factors is insufficient. In re Marriage of Logg, 74 Wn. App. 781, 785, 875 P.2d 647 (1994). Rather, the affidavit must include specific facts supporting the statutory conclusions. Logg, 74 Wn. App. at 785. As the majority notes, the parties do not dispute the insufficiency of the original affidavits. Majority opinion at 527.

¶26 But defective affidavits may be cured nunc pro tunc. First Fed. Sav. & Loan Ass’n v. Ekanger, 93 Wn.2d 777, 779, 613 P.2d 129 (1980). Such amendments are permissible to “alter[ ] the record to reflect what actually happened.” Logg, 74 Wn. App. at 786; see also Kent v. Lee, 52 Wn. App. 576, 580, 762 P.2d 24 (1988).

¶27 Our Supreme Court addressed this issue in Ekanger, 93 Wn.2d at 778-79. There, First Federal sought service by publication. Ekanger, 93 Wn.2d at 780. In its supporting affidavit, First Federal noted unsuccessful at*535tempts at personal service. Ekanger, 93 Wn.2d at 780. But it did not specifically state the nature of the underlying action. Ekanger, 93 Wn.2d at 780. Nor did it state that it mailed copies of the summons and complaint to Ekanger’s residence. Ekanger, 93 Wn.2d at 780. Accordingly, it submitted a defective affidavit. See Ekanger, 93 Wn.2d at 778.

¶28 The court held that the trial court acted within its discretion in allowing nunc pro time amendment of the defective affidavit. Ekanger, 93 Wn.2d at 782. It noted that First Federal actually complied with the statutory requirements, making the defect one of form and not substance. Ekanger, 93 Wn.2d at 782. Further, it explained that Ekanger did not suffer material prejudice because she had actual notice of the action. Ekanger, 93 Wn.2d at 782.

¶29 Similarly here, the trial court acted within its discretion. Pascua actually complied with the statutory requirements. He conducted a reasonable and diligent search prior to service by publication. This search included: (1) several attempts at personal service at Crystal Heil’s last known address; (2) searches using Qwest directory services for any “Crystal Heil” within the state of Washington; (3) online searches through Qwestdex, the United States Postal Service, and other search engines; (4) service by certified and first-class mail; and (5) attempts to reach Crystal by telephone.11 Although Pascua did not employ every conceivable search method available, his efforts represent a reasonable and diligent attempt. Given this extensive search, it was not unreasonable to believe that Crystal intentionally concealed herself to avoid service of process. The amended affidavit did not add “new facts,” rather it clarified what had actually occurred. Any defect in the affidavit goes to form, not substance.

¶30 Further, Crystal and Charles Heil did not oppose the motion to amend nunc pro tunc. Certainly, it is not manifestly unreasonable to grant an unopposed motion. And the Heils did not assign error to this decision on appeal, *536suggesting that they do not believe that they suffered material prejudice. As such, the trial court’s decision was based on tenable grounds and reasons.

¶31 Because the trial court acted within its discretion in allowing amendment nunc pro tunc, I would affirm the decision below. Accordingly, I dissent.

Because service on Charles was not addressed below or briefed by the parties, there is no need to consider the issue further.