Peter Clark v. Jesse Hoyos Diaz, et ux

FILED
NOVEMBER 12, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
PETER CLARK, an individual, )
) No. 37041-1-III
Appellant, )
)
v. )
)
JESSE HOYOS DIAZ and JANE DOE ) UNPUBLISHED OPINION
HOYOS DIAZ, husband and wife and )
their marital community composed )
thereof, )
)
Respondents. )
SIDDOWAY, J. — Peter Clark appeals the trial court’s dismissal of his personal
injury action against Jesse Hoyos Diaz. Mr. Hoyos Diaz presented evidence that Mr.
Clark’s attempted service of process was ineffective and his claim had become time-
barred. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Jesse Hoyos Diaz and Peter Clark were involved in an automobile accident on
June 2, 2016. According to the police report, Mr. Hoyos Diaz was 18½ years old at the
time of the accident and lived at an apartment on Umatilla Avenue in Umatilla, Oregon.
Over two years later, on March 22, 2019, Mr. Clark filed a personal injury action
against Mr. Hoyos Diaz in Franklin County Superior Court. On March 26, a process
No. 37041-1-III
Clark v. Hoyos Diaz
server delivered two copies of the summons and complaint to the Umatilla address set
forth in the accident report. A declaration of service was completed by the process server
that day and was later filed with the court; it was largely preprinted, including only a few
handwritten entries:
Clerk’s Papers (CP) at 25-26.
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About a week later, on April 1, Mr. Hoyos Diaz appeared in the action through
counsel. The notice of appearance did not waive defects as to jurisdiction and requested
that the lawyers be served with further pleadings or notices, except process.
On June 27, 2019, Mr. Hoyos Diaz filed a CR 12(b)(2) motion to dismiss Mr.
Clark’s complaint based on a lack of personal jurisdiction. Mr. Hoyos Diaz supported his
motion to dismiss with his own declaration as well as the declaration of his landlord. The
landlord’s declaration stated in relevant part that “Jesse Hoyos Diaz has resided at
apartment A1 within the apartments located at 625 NW Spruce St., Hermiston, Oregon
97838 since March 20, 2018 and has made payment for rent for said apartment every
month from March 20, 2018 up to the present.” CP at 31. Mr. Hoyos Diaz’s declaration
stated, in part:
6. . . . I did not reside at 402 Umatilla Ave., in any apartment in
Umatilla, Oregon at that time of service and had not resided there for
some time.
7. Instead, I resided at 625 SW Spruce St, Apt A-1, Hermiston, OR at
the time service was attempted and have resided there since March
20, 2018.
8. Additionally, my mother, Maria Diaz, is not a party hereto, and does
not speak English and would not have been able to communicate
what was alleged to have been communicated to the process server.
CP at 48.
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In resisting Mr. Hoyos Diaz’s motion to dismiss, the only evidence presented by
Mr. Clark was his process server’s original declaration of service and the police report
from the 2016 accident.
Both parties argued that Mr. Clark had the initial burden of making a prima facie
showing of proper service that could be made by producing an affidavit of service
indicating that service was properly carried out, after which the burden would shift to Mr.
Hoyos Diaz, who must present clear and convincing evidence of insufficient service.
Following a hearing, the trial court granted Mr. Hoyos Diaz’s motion. Since the
statute of limitations had run, the court dismissed the complaint with prejudice. Mr.
Clark appeals.
ANALYSIS
Mr. Clark argues on appeal that the police report and the process server’s affidavit
of service satisfied his burden of presenting prima facie evidence of proper service and
Mr. Hoyos Diaz failed to present clear and convincing evidence of improper service in
response. He characterizes the landlord’s declaration as “merely say[ing] that [Mr.
Hoyos Diaz] pays rent” at a Hermiston address. Opening Br. of Appellant at 3. He
argues that Mr. Hoyos Diaz presented no evidence as to where he spends most of his
time, whether he pays rent elsewhere, or where he receives mail.
Proper service of the summons and complaint is a prerequisite to a court obtaining
jurisdiction over a party. Woodruff v. Spence, 76 Wash. App. 207, 209, 883 P.2d 936
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(1994). RCW 4.28.080(16) authorizes serving the summons on the defendant personally
or by substitute service. “Substitute service of process is effective when (1) a copy of the
summons is left at defendant’s house of usual abode, (2) with some person of suitable age
and discretion, (3) then resident therein.” Sheldon v. Fettig, 129 Wash. 2d 601, 607, 919
P.2d 1209 (1996) (Sheldon II). Mr. Hoyos Diaz does not dispute that Mr. Clark’s process
server left copies of the summons and complaint with his mother, a person of suitable age
and discretion, at the home at which she then resided. At issue is whether his mother’s
home was Mr. Hoyos Diaz’s “house of usual abode” for purposes of effective substitute
service. The term “house of usual abode” means “‘such center of one’s domestic activity
that service left with a family member is reasonably calculated to come to one’s attention
within the statutory period for [the] defendant to appear.’” Sheldon II, 129 Wash. 2d at 610
(quoting Sheldon v. Fettig, 77 Wash. App. 775, 781, 893 P.2d 1136 (1995) (Sheldon I)).
Whether service of process is effective is reviewed de novo. Scanlan v.
Townsend, 181 Wash. 2d 838, 847, 336 P.3d 1155 (2014). We analyze the issue as briefed
by the parties: as turning on whether Mr. Hoyos Diaz’s evidence challenging the
effectiveness of the service was clear and convincing. See RAP 12.1(a) (the appellate
court generally will decide a case only on the basis of issues set forth by the parties in
their briefs).1
1
In the trial court and on appeal, the parties analyzed this issue contrary to Farmer
v. Davis, 161 Wash. App. 420, 250 P.3d 138 (2011), in which this court held a presumption
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Clear and convincing evidence requires more than a preponderance of the
evidence. In re Welfare of Sego, 82 Wash. 2d 736, 739, 513 P.2d 831 (1973). Clear and
convincing evidence exists when the ultimate facts are shown to be “highly probable.”
In re Parental Rights to K.M.M., 186 Wash. 2d 466, 478, 379 P.3d 75 (2016) (internal
quotation marks omitted).
In analyzing whether a defendant’s evidence is clear and convincing, reported
decisions have considered not only the probativeness of the defendant’s evidence but also
whether the plaintiff responds with evidence beyond its prima facie showing that calls the
defendant’s evidence into doubt. Thus, in Northwick v. Long, 192 Wash. App. 256, 259-60,
364 P.3d 1067 (2015), not only was the defendant’s evidence weak (he relied on only his
father’s declaration, without a sworn declaration of his own), but the plaintiff rebutted the
defense evidence with the process server’s deposition testimony. The process server
testified to what he was told by the defendant’s father and his standard practice to obtain
multiple confirmations of a defendant’s residence from the coresident with whom the
summons and complaint are left. He also testified that he checked the defendant’s
that must be overcome by clear and convincing evidence does not apply to prejudgment
attacks on the sufficiency of service of process. And Mr. Clark never requested an
opportunity for jurisdictional discovery or an evidentiary hearing before the court. Cf.
Harvey v. Obermeit, 163 Wash. App. 311, 327, 261 P.3d 671 (2011) (citing Gross v.
Sunding, 139 Wash. App. 54, 67, 161 P.3d 380 (2007)) (when affidavits present an issue of
fact, evidentiary hearing before judge may be required); cf. State v. LG Elecs., Inc., 186
Wash. 2d 169, 184, 375 P.3d 1035 (2016) (jurisdictional discovery may be warranted where
pertinent facts bearing on jurisdiction are controverted).
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residence using the Department of Licensing database, a TransUnion “Locate report,”
and a U.S. Postal Service Trace. Id. All databases confirmed the defendant resided at his
father’s address. Id.
The Northwick court pointed out that reported decisions have found a defendant’s
evidence to fall short of clear and convincing when it fails to demonstrate a different
place of usual abode. Id. at 262 (citing State ex rel. Coughlin v. Jenkins, 102 Wash. App.
60, 64-65, 7 P.3d 818 (2000)). By contrast, a defendant’s evidence that she has notified
third parties (the post office, the Department of Motor Vehicles, creditors) of a new
address has been found to be clear and convincing. Id. at 263 (citing Gross v. Evert-
Rosenberg, 85 Wash. App. 539, 541, 933 P.2d 439 (1997)).
Mr. Clark cites Sheldon II for its holding that the statutory provisions permitting
substitute service must “be liberally construed to effectuate service and uphold
jurisdiction of the court.” 129 Wash. 2d at 609. “Liberal construction does not mean
abandoning the statutory language entirely.” Gerean v. Martin-Joven, 108 Wash. App.
963, 972, 33 P.3d 427 (2001). In Sheldon II, the defendant had moved to Chicago, but
the plaintiff presented evidence that she continued to use her parents’ address as her
residence for the purpose of her voter registration, car registration, on her car’s bill of
sale, with her car insurer, when cited for speeding, and that she returned to their home
often—collectively it caused the court to conclude that the defendant had two “usual
place[s] of abode.” See Sheldon II, 129 Wash. 2d at 610-11. Mr. Clark presented no
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evidence that Mr. Hoyos Diaz had these or similar continuing connections with his
mother’s home.
Mr. Hoyos Diaz’s evidence, compared to Mr. Clark’s, was clear and convincing.
The order dismissing the action is affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_____________________________
Siddoway, J.
WE CONCUR:
_____________________________
Pennell, C.J.
_____________________________
Lawrence-Berrey, J.
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