PS 102 – Chapter 6 – Article 3 – Evasion of Service – Diversified Wood vs Johnson
Published Opinion
Court of Appeals Division I
65263-0
Diversified Wood Recycling, Inc, V. Harold Johnson, Et Us.
C4PSE Note: The “summary” of this case is somewhat extended due to its unusual nature and complexity.
Facts
According to unchallenged findings of fact entered by the trial court, defendant Harold Johnson commenced a planned unit development known as the River Ranch on the Little Spokane on property located in Spokane County. Diversified Wood Recycling Inc. is a land clearing and logging corporation belonging to Tim Davison.
There are two Harold Johnsons in this case, father and son. We will refer to the Harold Johnson who eventually answered the foreclosure complaint as “Junior,” and we will refer to his father as “Senior.” Where we do not know if the actor is Junior or Senior, we will simply refer to “Harold Johnson.”
Junior, representing that he was the owner of the property, met Davison on the property in September 2006 and discussed his desire to have some land clearing done. Davison prepared a “Bid to clean up slash at Jim Hill Rd Development” based on a price per cubic yard of material hauled off. He addressed the bid to “Hal Johnson” at an address on 23rd Street Southeast in Puyallup, Washington. It is undisputed that the Puyallup address is Junior’s office address. Junior reviewed and signed the bid, accepting its terms. Diversified’s crew performed work on the property on October 2 and 3, 2006, and immediately sent two invoices totaling $10,680 for that work to “Hal Johnson” at the Puyallup address. The invoices went unpaid. Diversified sent a final notice dated January 8, 2007, but again received no payment. Davison concluded legal action would be necessary. Information he obtained from county records and from a title company confirmed that the owner and taxpayer for the parcel of property on which Diversified performed the work was Harold Johnson at the Puyallup address. Diversified recorded a claim of lien on that parcel on March 2, 2007, and then filed a foreclosure action in Spokane County Superior Court on May 16, 2007.
The foreclosure complaint named as defendants “Harold Johnson, also known as Hal Johnson and Jane Doe Johnson, husband and wife,” who were alleged to be the “owner or reputed owner” of the subject property. The complaint stated that Diversified began to furnish labor and materials for use in the improvement of the property on October 2, 2006, and ceased work on December 4, 2006. Diversified sought judgment for foreclosure of the lien and for $10,680 plus interest and attorney fees. Diversified had the complaint personally served upon Junior on June 11, 2007, at his personal residence, an address on Viewpoint Circle Northeast in Tacoma, Washington. Junior answered the complaint on August 15, 2007.
A bench trial began on April 14, 2008, before the Honorable Robert D. Austin. Junior argued that Diversified abandoned the job after 2 days and recorded the lien more than 90 days after completing the work. Junior also argued that Diversified failed to join and serve the owner of the property in the foreclosure action. Thus, he sought dismissal of the action on grounds that the lien had expired.
Junior testified that his father bought the property with the intent of developing a portion of it. He said he himself was the president of a contracting company called Northwest Infrastructure that was responsible for coordinating improvements such as roads and utilities for the planned unit development project. Junior said he hired Diversified on behalf of Northwest Infrastructure. He denied owning any of the property. According to Junior’s testimony, the owner was Kuleana (a Limited Liability Company that is Junior states is owned by his father, Senior).
After two days of trial, the court found that Diversified had satisfied the statutory prerequisites for foreclosing a lien. The court entered judgment in favor of Diversified, declaring a lien on “the whole of the real property” described in the lien claim for a total of $67,569.55, including the unpaid invoices plus interest and $55,285.44 in attorney fees. The court ordered sale of the property to satisfy the judgment.
This opinion addresses Junior’s appeal from the judgment of foreclosure. In post judgment proceedings, Senior moved unsuccessfully to intervene and vacate the judgment. The post judgment proceedings and Senior’s appeal are addressed in the second of these two linked opinions, No. 65264-8-I
Specific Issues
- Is serving the correct person vital to the court obtaining jurisdiction over a defendant? Yes
- When dealing with a Senior and Junior situation, is it important to pay attention to which you are serving the documents and to which you are presenting the documents? Yes
- Is incorrect-service of a Senior or Junior is always detrimental to the case? No
- Is it possible for unusual situations to occur in identifying a defendant? Yes
- Did the court consider diligence an important factor in this case? Yes
Holdings
Service of a real property foreclosure action must be completed within 90 days of filing the action.
Junior and Senior used the fact that they had similar names in an attempt to get out of their responsibilities.
The defendant(s) purposefully misconstrued their identities in documents pertaining to the ownership of the land in question and in representation of the company, Kuleana.
The plaintiff showed diligence in attempting to correctly serve the owner of the property.
Reasoning
To begin, the trial court found that Diversified served Junior. “The defendant was served with the Complaint at his personal residence on June 11, 2007. [The] defendant’s father, also Harold Johnson, was never served with the Complaint.” While information that came to light afterwards may tend to suggest that the Harold Johnson named in the deed from McGarvey was Senior rather than Junior, Diversified could not have discerned from the public record that such was the case at the time of recording the lien claim or at the time of filing the foreclosure action. It is true that Diversified included “Jane Doe Johnson” in the caption even though the McGarvey deed refers to “Harold Johnson, a single man,” but this does not mean Diversified knew it was suing someone other than the Harold Johnson in the McGarvey deed, and neither does the fact that Diversified sued “Harold Johnson, also known as Hal Johnson.” Diversified was not obligated to search for marriage certificates or investigate nicknames. So far as the public record disclosed, McGarvey deeded the property to “Harold Johnson” whose address was in Puyallup. Diversified served a Harold Johnson who had that address.
In this respect, the facts are unlike in Schumacher, where the claimant served First Union Management, a management company, but did not serve the record owner, First Union Real Estate Equity and Mortgage Trust. The names there were similar but not identical. It is unlikely Schumacher would have come out the same way if both the management company and the record owner, though formed as distinct entities at different times, had both been named “First Union Management.” Here, the older and younger Harold Johnson merged their identities for practical purposes by using the identical name and the identical address for their business dealings. When the record owner of a parcel of property has exactly the same name and address as another entity, and the owner entrusts the hiring of contractors to the identically named entity, and that identically named entity: (1) holds itself out as the owner of the property, (2) requests the contractor’s work on the property, and (3) does not inform the contractor about who the actual owner is, the contractor cannot reasonably be expected to distinguish between them for purposes of RCW 60.04.141. To hold otherwise would create a recipe for obfuscation and artifice that could be intentionally employed by property owners who seek to be insulated from construction liens.
Over the course of the trial, Judge Austin developed the perception that the two Harold Johnsons were intentionally manipulating their identities. In denying Senior’s post judgment motion to intervene, he commented, “One of my impressions at trial was that Harold Johnson and Harold Johnson have used that dual persona quite to their advantage, probably more than just this time. . . . I found it preposterous, what their explanations were. Preposterous.”
Because the two Harold Johnsons effectively held themselves out as the same person without making it possible for Diversified to distinguish between them at the time of recording the lien and filing suit, the trial court legitimately treated them as the same person for purposes of deciding whether Diversified complied with statutory requirements. Thus, if Harold Johnson was the record owner of the property when Diversified initiated the action, Diversified satisfied the service requirement by serving Harold Johnson.
At oral argument in this court, counsel for Diversified brought up RCW 60.04.230. This section of the statute requires the prime contractor for any construction project costing more than five thousand dollars to post a legible notice at the construction site containing, among other items of information, the legal description or tax parcel number of the property and the name, address, and phone number of the property owner. Because the first mention of RCW 60.04.230 was not until oral argument in this court, we do not discuss it or rely on it.
Junior argues, however, that the record owner who had to be served to satisfy RCW 60.04.141 was actually Kuleana.
The deed from Harold Johnson to Kuleana was recorded on February 2, 2007. Diversified’s title investigation occurred on February 7 and 13, 2007. Evidence of Kuleana’s recorded deed did not turn up in the materials Diversified obtained from the assessor’s office and a title company. We note that the legal description in the claim of lien is not the same as the legal description in the Kuleana deed. The parties did not address the discrepancy at trial, and they do not do so in this appeal. Junior and Senior testified generally to the effect that Senior wanted to develop only 60 acres of the land he purchased from McGarvey and then retire on the rest. On appeal, Junior asserts that the present dispute concerns only the 60 acres included in the development project. He is incorrect. The findings entered by the trial court distinguish between “the Property” and “the Project”:
In or around April of 2006, defendant Harold Johnson commenced a planned unit development known as the River Ranch on the Little Spokane (hereinafter “Project”) on certain real property located in Spokane County, Washington (hereinafter “Property”).
The present dispute is not concerned only with the acreage within the planned unit development project. The present dispute concerns parcel no. 38345.9036, the property that was identified and described in the Claim of Lien and represented in the assessor’s records to be 222.7 acres.
The map in plaintiff’s exhibit 7 depicts parcel no. 38345.9036 as a large, roughly trapezoidal parcel with a river running through it. The other two smaller parcels identified on the face of the McGarvey deed are adjacent.
Diversified performed all of its work in 2006 before any property was conveyed to Kuleana. Therefore, its work improved all three parcels owned at that time by Harold Johnson, or at a minimum the large parcel of 222.7 acres designated in the claim of lien. If the deed from Harold Johnson to Kuleana describes less than all of that parcel — a theory not pursued at trial — then when Diversified filed the foreclosure action on May 16, 2007, Harold Johnson remained a record owner of at least part of the parcel that Diversified improved and subjected to the lien. If so, then Diversified’s service on “a Harold Johnson” satisfied the statutory requirement of service upon the owner.
On the other hand, if (as Junior argued at trial) the deed from Harold Johnson to Kuleana describes all of the parcel Diversified designated in the claim of lien such that Kuleana was the record owner of all of it as of February 2, 2007, the question is whether Diversified’s service on “a Harold Johnson” was service on Kuleana.
The trial court found that Harold Johnson at the Puyallup address was Kuleana’s registered agent. The public record at the time of service provided no way to determine whether the registered agent was Junior or Senior. The Puyallup address is the office address of Harold Johnson Junior, and according to Senior’s testimony he sometimes uses the same address. Under these unique circumstances, we conclude that for purposes of RCW 60.04.141, service upon Junior was service upon Kuleana’s registered agent. If Kuleana was the owner, Diversified’s service on “a Harold Johnson” satisfied the statutory requirement of service upon the owner.
In summary, so far as Diversified could have discerned from the public record, the record owner of the liened parcel at all pertinent times was either Harold Johnson or Kuleana. By serving the complaint on a Harold Johnson, Diversified made satisfactory service on both of the two possible record owners and thereby prevented expiration of the lien. The trial court did not err in concluding that Diversified satisfied the requirements of RCW 60.04.141.
C4PSE Comment
This case is interesting because it showed how the court might approach a situation involving defendants who are not easily discernible as individuals. It is not unusual for process servers to encounter fathers and sons with the same or very similar names. Indeed, such name issues may also arise between mothers and daughters though this is somewhat less common. It appears from the record that the process server performed his duties properly and served the documents in accordance with client instructions. The lesson to be taken from this case is that a professional process server should be aware of such name and identity issues and report any hint of them to the client.
This is a rough diagram of a typical courtroom in the state of Washington. Courtrooms vary a great deal from city to city and county to county but they all have the same basic structure.
