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Process Serving 102 – Case Law

PS 102 – Understanding Case Summaries
PS 102 – Chapter 1 – An Introduction to Personal Service Case Law
1 Topic
PS 102 – Chapter 1 – Article 1 – Personal Service Held Invalid – Gross vs Sunding
PS 102 – Chapter 2 – An Introduction to Abode Service
9 Topics
PS 102 – Chapter 2 – Article 1 – Abode Service Upheld – Lino vs Hole
PS 102 – Chapter 2 – Article 2 – Abode Service Upheld – Chase v. Starkweather
PS 102 – Chapter 2 – Article 3 – Abode Service Upheld – Sheldon v Fettig
PS 102 – Chapter 2 – Article 4 – Abode Service Held Invalid – McCann v. Orth
PS 102 – Chapter 2 – Article 5 – Abode Service Upheld – Wichert vs Cardwell
PS 102 – Chapter 2 – Article 6 – Abode Service Held Invalid – Farmer vs Davis
PS 102 – Chapter 2 – Article 7 – Abode Service Held Invalid – Salts vs Estes
PS 102 – Chapter 2 – Article 8 – Abode Service Held Invalid – Gerean v. Martin-Joven
PS 102 – Chapter 2 – Article 9 – Abode Service Held Invalid – Blankenship v. Kaldor
PS 102 – Chapter 3 – An Introduction to Immunity from Service Case Law
2 Topics
PS 102 – Chapter 3 – Article 1 – Immunity from Service – State ex rel Gunn v. Superior Court
PS 102 – Chapter 3 – Article 2 – Immunity from Service – Anderson vs Ivarsson
PS 102 – Chapter 4 – An Introduction to Due Diligence Case Law
6 Topics
PS 102 – Chapter 4 – Article 1 – Due Diligence – Brennan vs Hurt
PS 102 – Chapter 4 – Article 2 – Due Diligence – Painter v. Olney
PS 102 – Chapter 4 – Article 3 – Due Diligence – Chase v. Carney
PS 102 – Chapter 4 – Article 4 – Due Diligence – Parkash vs Perry
PS 102 – Chapter 4 – Article 5 – Due Diligence – Carras v Johnson
PS 102 – Chapter 4 – Article 6 – Due Diligence – Wells Fargo v Ngy
PS 102 – Chapter 5 – An Introduction to Non Resident Motorist Act Case Law
3 Topics
PS 102 – Chapter 5 – Article 1 – Non Resident Motorist Act – Martin v Meier
PS 102 – Chapter 5 – Article 2 – Non Resident Motorist Act – Harvey v Obermeit
PS 102 – Chapter 5 – Article 3 – Non Resident Motorist Act – Martin vs Triol
PS 102 – Chapter 6 – An Introduction to Evasion of Service Case Law
5 Topics
PS 102 – Chapter 6 – Article 1 – Evasion of Service – State vs Vahl
PS 102 – Chapter 6 – Article 2 – Evasion of Service – Weiss vs Glemp
PS 102 – Chapter 6 – Article 3 – Evasion of Service – Diversified Wood vs Johnson
PS 102 – Chapter 6 – Article 4 – Evasion of Service – United Pacific Insurance vs Discount Company
PS 102 – Chapter 6 – Article 5 – Evasion of Service – Mann vs Hobbick
PS 102 – Chapter 7 – An Introduction to Defendant Instructed Service Case Law
1 Topic
PS 102 – Chapter 7 – Article 1 – Instructed Service – Thayer vs Edmonds
PS 102 – Chapter 8 – An Introduction to Service on an Entity Case Law
4 Topics
PS 102 – Chapter 8 – Article 1 – Service on an Entity – Dolby vs Worthy
PS 102 – Chapter 8 – Article 2 – Service on an Entity – Lybbert vs Grant County
PS 102 – Chapter 8 – Article 3 – Service on an Entity – Reiner vs Pittsburg Des Moines Corp
PS 102 – Chapter 8 – Article 4 – Service on an Entity – Weber vs Associated Surgeons
PS 102 – Chapter 9 – An Introduction to Time Computation Case Law
1 Topic
PS 102 – Chapter 9 – Article 1 – Time Computation – Stikes Woods vs City of Lacey
PS 102 – Chapter 10 – An Introduction to Who May Serve Case Law
2 Topics
PS 102 – Chapter 10 – Article 1 – Who May Serve – Brown-Edwards vs Powell
PS 102 – Chapter 10 – Article 2 – Who May Serve – Scanlan vs Townsend
PS 102 – Chapter 11 – An Introduction to Statutes of Limitation
1 Topic
PS 102 – Chapter 11 – Article 1 – Statute of Limitations – Sidis vs Brodie Dohrmann Inc
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PS 102 – Chapter 4 – Article 1 – Due Diligence – Brennan vs Hurt

Process Serving 102 – Case Law PS 102 – Chapter 4 – An Introduction to Due Diligence Case Law PS 102 – Chapter 4 – Article 1 – Due Diligence – Brennan vs Hurt

Summary
Brennan, et al. v. Hurt et al, 59 Wn. App 315 (1990)

Facts

The Hurts hired Brennan to repair their fishing boat.  Brennan was not paid and he filed a complaint for breach of contract.  The Sheriff’s return of service upon the Hurts stated that he was “unable to serve – have left area – home appears empty.”  Brennan then sought service by publication under RCW 4.28.100.  His affidavit in support of publication stated “due and diligent inquiry of and among the former neighbors and associates of defendants”. . . and that Defendants left the state to avoid service of summons but had property in the state within the jurisdiction of the court.  The Hurts failed to appear and judgment was entered against them.

Five years later, Brennan located the Hurts in Oregon and garnished their property.  Hurts claimed improper service of publication and therefore lack of personal jurisdiction.  During post judgment proceedings, Brennan filed five affidavits in opposition to Hurt’s motion to quash the writ of garnishment.  These affidavits contained detailed facts showing a reasonably diligent search for Defendants.   

Judicial History

Judgment by default was entered by trial court.  Trial court denied Defendant’s motion to vacate. The Court of Appeals affirmed denial of motion to vacate.   

Specific Issues

  1. Was the original affidavit from the sheriff in support of service of process by publication sufficient?  No.
  2. In a post judgment proceeding will the court allow additional information to support service by publication?  Yes.
  3. Is there a different standard applied to service by publication in post judgment proceedings?  Yes.

Holding

  • Strict compliance with the statute (RCW 4.28.100) is required for jurisdiction to attach when summons is served by publication.  Affidavits supporting service by publication must set forth facts, not just conclusions, showing a reasonably diligent search; a simple averment that a defendant cannot be found within the state is insufficient.
  • The plaintiffs in fact had made a sufficient effort to locate the defendants before serving them by publication, the court affirms the denial of the motion to vacate.
  • What appears prima facie to be defective service can be cured if attacked in a post judgment proceeding by a factual showing that a proper basis for alternative service in fact existed.  

Reasoning

Plaintiffs’ original affidavit in support of service was insufficient for want of any facts showing a diligent search within the state. Had jurisdiction been attacked before judgment, the trial court would have been required to dismiss.

A different standard applies to post judgment motions, where the order of default or judgment under attack recites service sufficient to confer jurisdiction. In such cases, a presumption of jurisdiction arises. That presumption can be overcome by showing that publication was based on a defective affidavit.

Here, Brennan filed five affidavits, in opposition to the motion to vacate, containing detailed evidence showing that:

  • The Hurts’ boat was found abandoned in California;
  • That the Hurts were in Texas during part of the time in 1983 that Brennan searched for them;
  • That inquiries at Angove Accounting revealed no money with which to pay Brennan;
  • That Pacific County sheriff’s deputies were attempting to serve the Hurts in three other legal matters during the 1983 period in question.

The Court of Appeals agreed with the trial court that these affidavits in substance show that Brennan made “an honest and reasonable effort” to find the Hurts; the law requires no more.

C4PSE Comment

A service can be called into question at any time. It is for this reason that process servers need to make diligent notes, detailing all that was done and discovered during the process of attempting and or accomplishing service. It is also the reason for keeping these notes.  If a service is attacked 5 years after the fact, you should be able to pull up those notes and provide them to your client or the court.

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