Discover Bank, Issuer Of The Discover Card, Resp v. Boris Petrenko, App ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DISCOVER BANK, ISSUER OF THE No. 69964-4-1
DISCOVER CARD,
DIVISION ONE
CO
Respondent, •"-""Up:
v.
BORIS PETRENKO and DOE I, and UNPUBLISHED
their marital community composed
thereof, FILED: April 28, 2014
Appellants.
COX, J. — Substituted service at a defendant's usual abode requires,
among other things, that the summons be served upon a person who is "then
resident therein."1 The supreme court has interpreted "resident" under RCW
4.28.080(15) to include a relative of the defendant who actually slept in the home
of the defendant the night prior to substituted service.2 Mere presence in the
defendant's home, however, is insufficient to satisfy the requirements of this
statute.3 It is unclear from this record whether Boris Petrenko has met his burden
to show by clear and convincing evidence that service was improper.
Accordingly, we remand for an evidentiary hearing on whether Lena Petrenko,
who was served by a process server, was "then resident" at the home of Boris at
the time of service.
1 RCW 4.28.080(15).
2 Salts v. Estes, 133 Wn.2d 160, 169, 943 P.2d 275 (1997).
3 Id. at 169-70.
No. 69964-4-1/2
Discover Bank brought this action against Boris Petrenko for monies owed
as a result of transactions on a credit card that it issued to him. According to a
declaration of service by Ken Vandyke, he served the summons and complaint
upon "Boris Petrenko and Doe 1" by personally delivering copies to "Jane Doe,
WHO REFUSED TO GIVE NAME, CO-RESIDENT," at Petrenko's usual abode
on January 7, 2012.4 The declaration further describes "Jane Doe" as "a brown-
haired white female approx. 55-65 years of age, 5'-5'4" tall and weighing 80-120
lbs."5
Petrenko appeared pro se, filed an answer to the complaint, and reserved
the issue of whether there was proper service. Discover moved for summary
judgment. Petrenko failed to appear at the hearing, and the court granted
summary judgment to the bank on August 24, 2012.
Three months later, Petrenko, now represented by counsel, moved,
pursuant to CR 60(b)(5) and (11), to vacate the judgment as void for improper
service. In support of his motion, Petrenko submitted a declaration from Lena
Petrenko that admits she was the Jane Doe that Vandyke served on January 7.
But she also declares that she is "not a resident at [Petrenko's house]" and
Tive[s] in Sammamish, Washington." She further declares that the process
server did not ask her name and that she never told him that she lived at
Petrenko's house.
In denying Petrenko's motion, the trial court stated:
4 Clerk's Papers at 49.
5 Id.
No. 69964-4-1/3
The term resident as used in this circumstances does not require
any particular length of stay, nor does it require that it be the
exclusive residence of the person.[6]
Petrenko appeals.
CR 60(b)(5) MOTION
Generally, we review a motion to vacate for an abuse of discretion, but
because courts have a mandatory, nondiscretionary duty to vacate void
judgments, we review de novo a trial court's decision to grant or deny a motion to
vacate for lack of jurisdiction.7 Thus, we reject Discover's argument that an
abuse of discretion standard of review controls.
Petrenko contends that the trial court should have granted his motion to
vacate the default judgment because the court lacked personal jurisdiction due to
improper service. "Proper service of the summons and complaint is essential to
invoke personal jurisdiction over a party, and a default judgment entered without
proper jurisdiction is void.'"8 Thus, despite the general requirement that personal
jurisdiction be raised in the answer or in a motion prior to filing the answer, if a
judgment has been entered by default and the judgment is later shown to be void
for lack of personal jurisdiction, the court may vacate the judgment at any time
under CR 60(b)(5).9
The ways in which a person may serve with a summons are set forth in
RCW 4.28.080. Generally, personal service is required, but substitute service is
permitted under certain circumstances. RCW 4.28.080 provides in pertinent part:
6 Id at 89.
7 Ahten v. Barnes, 158 Wn. App. 343, 350, 242 P.3d 35 (2010).
8Allstate Ins. Co. v. Khani. 75 Wn. App. 317, 324, 877 P.2d 724 (1994) (quoting
In re Marriage of Markowski, 50 Wn. App. 633, 635-36, 749 P.2d 754 (1988)).
9 ]d at 323-24.
3
No. 69964-4-1/4
Service made in the modes provided in this section is personal
service. The summons shall be served by delivering a copy
thereof, as follows:
***
(15) In all other cases, 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.™
Thus, in order to effectuate substitute service, Discover needed to (1)
leave a copy of the summons at Petrenko's house, (2) with some person of
suitable age and discretion, (3) then resident therein. The only element at issue
here is the third one.
The term "resident" requires something more than being present in the
defendant's usual abode.11 As noted by our supreme court in Salts v Estes,
when the legislature required that service be on a person who is "then resident"
in the defendant's usual abode, it meant something more than fleeting
occupancy.12 The usual rule is that service on employees and others who do not
reside in the defendant's home does not comport with due process.13 In Salts,
the court held that service of process on a person who was temporarily in the
defendant's home to feed dogs and take in the mail was insufficient for substitute
service of process. In refusing to interpret the term "resident" so that "mere
presence in the defendant's home or 'possession' ofthe premises [would be]
sufficient to satisfy the statutory residency requirement,"14 the court explained,
Under such a view, service on just about any person present at the
defendant's home, regardless of the person's real connection with
10 (Emphasis added.)
11 Salts, 133 Wn.2d at 167-68.
12 Salts v. Estes, 133Wn.2d 160, 168, 943 P.2d 275 (1997).
13 Id
14 Id. at 169-70.
No. 69964-4-1/5
the defendant, will be proper. A housekeeper, a baby-sitter, a
repair person or a visitor at the defendant's home could be served.
Such a relaxed approach toward service of process renders the
words of the statute a nullity and does not comport with the
principles of due process that underlie service of process
statutes. t15i
But in reaching the conclusion that it did in Salts, the supreme court
distinguished its earlier case ofWichertv. Cardwell.16 There, the court held that
service upon an adult child staying overnight at her parents' home was sufficient
service upon the defendant parents.17 The Salts court distinguished Wichert, in
part because the daughter on whom service was made in that case slept in the
defendants' home on occasion and in particular the night before she accepted
service.18
Here, Discover has made a prima facie case that service was proper. The
burden then shifted to Petrenko to show by clear and convincing evidence that
service was improper. This record does not clearly show he has done so. A
person sharing his last name identifies herself as the "Jane Doe" with whom the
process server left copies of the summons and complaint. There is a dispute
whether she was "then resident" in the home of Boris Petrenko. Her mere denial
that she was not a resident, given the declaration that she was, is insufficient to
show by clear and convincing evidence that service was improper. Only an
evidentiary hearing, involving both Vandyke and Lena Petrenko, may resolve this
dispute.
15 Id (emphasis added).
16 Wichert v. Cardwell. 117 Wn.2d 148, 812 P.2d 858 (1991).
17 Id at 152.
18 Salts, 133Wn.2dat169.
No. 69964-4-1/6
Citing Sheldon v Fettiq,19 Discover argues that Washington only requires
substantial compliance with the substituted service requirements. The bank is
mistaken. In Sheldon, copies of the summons and complaint were left with the
defendant's brother at her parents' residence. The court in Sheldon concluded
that the defendant maintained two places of usual abode, one at her family home
in Seattle and one at her apartment in Chicago, and that her family home was the
place where she was most likely to receive notice of an impending suit. Sheldon
is distinguishable from the present case. Like Salts, but unlike Sheldon, the
issue here is not where the residence is, but rather who resides there for
purposes of substituted service. As we already discussed, a fact dispute exists
between these parties. Because of this dispute, we remand to the trial court to
hold an evidentiary hearing to determine whether Lara Petrenko was "resident
therein" at the time of service.
CR 60(e) PRIMA FACIE DEFENSE
Discover contends that under CR 60(e), Petrenko must demonstrate a
prima facie defense against its claims in order to vacate a judgment. This is
incorrect. As this court noted in Mid-City Materials, Inc. v. Heater Beaters
Custom Fireplaces,20 the customary meritorious requirement of CR 60 is
immaterial when a court entering judgment has no jurisdiction over the
defendants in the first instance. Similarly here, the challenge to the judgment is
based upon lack of personal jurisdiction. Therefore, Petrenko need not establish
19 Sheldon v. Fettig, 129 Wn.2d 602, 919 P.2d 1209 (1996).
20 See, Mid-Citv Materials, Inc. v. Heater Beaters Custom Fireplaces, 36 Wn.
App. 480, 486, 674 P.2d 1271 (1984) (Customary meritorious defense requirement of
CR 60 is immaterial when court entering judgment has no jurisdiction over the
defendants.).
No. 69964-4-1/7
a meritorious claim.
The parties reference CR 60(b)(11) below but do not argue it on appeal.
Therefore, we do not address it.
ATTORNEY FEES
Both sides request an award of fees on the basis of the contract between
them. Because an award of fees is premature, we deny an award of fees at this
time. This is without prejudice to the trial court determining who the prevailing
party is at the time of resolving the service dispute and awarding fees, both for
trial and appeal, to such party.
We vacate the order denying the motion and remand for further
proceedings that are consistent with this opinion.
CcnT.
WE CONCUR:
W<4ftM~ Cy0.