PS 102 – Chapter 2 – Article 2 – Abode Service Upheld – Chase v. Starkweather

Summary
Chase v. Starkweather, No. 33105-5-11 (March 11, 2005 Unpublished Opinion).

Facts

The Chases sued Starkweather for faulty roofing work. A process server delivered a copy of the summons and complaint to Starkweather’s father at the father’s home in Moses Lake. According to the process server’s declaration, she was told by a neighbor who knew Starkweather and his father that Starkweather was currently living with his father at the Moses Lake address.

Starkweather did not appear and the Plaintiffs sought and obtained a default order and judgment. Starkweather filed a motion to vacate the default judgment due to improper service. He submitted affidavits from him and his father stating:

1. That his residence was in Yakima.
2. That he had never lived at the Moses Lake address.
3. That he had never used the Moses Lake address as his own.

Starkweather submitted additional evidence that:

1. He had received service of process in an unrelated lawsuit at the Yakima address.
2. He had received a DUI citation which listed the Yakima address.

Starkweather also argued that the process servers proof of serivce was not factially correct because part of it claimed that personal service was had when in fact the service was done by the abode method of service.

In response, Plaintiffs submitted the process server’s declaration and the report of an investigator hired to locate Starkweather. The investigator stated that Starkweather gave his Moses Lake address to police when he was arrested and charged with a domestic violence offense.

Judicial History

Superior Court denied Defendant’s motion to vacate the judgment due to improper service. Appellate Court affirms.

Specific Issues

1. Is an affidavit of service “facially correct” if it describes the time, place and manner of service? Yes.
2. Must a party challenging service present “clear and convincing evidence” that service was improper? Yes.
3. Can a person have more than one “usual place of abode?” Yes.

Holding

1. An affidavit of service is facially correct if it describes service in compliance with RCW 4.28.080 (16) and CR 4 (g) (7) (time, place and manner of service).
2. An affidavit of service that is facially correct is presumed valid and, after judgment is entered, a party challenging service must present clear and convincing evidence that service was improper.
3. The defendant did not prove the Moses Lake address was not a usual place of abode.

Reasoning

While part of the process server’s proof of service said service had been done by personal service, a later part of it described the service as having been done using abode service. The court found that the process server’s affidavit satisfied the requirements of CR 4(g)(7). The affidavit was facially correct and the burden shifted to Defendant to present clear and convincing evidence that the Moses Lake address was not his house of usual abode at the time of service.

Plaintiff established that where Defendant’s liberty interests were at stake he used the Moses Lake address, e.g., when he instructed the government to contact him there; the same location would therefore be the most likely place where he would receive notice of a civil suit.

Starkweather submitted no evidence of his actual abode at the time of service. Moreover, a neighbor told the process server that he was living with his father at the Moses Lake address. Defendant did not sustain his burden to present clear and convincing evidence that service was improper.

C4PSE Comment

This is an excellent example of why it is important for process servers to take good, concise notes. These notes allow a server to provide their client with a declaration or affidavit that is facially correct and puts the burden of proof back onto the servee to show that the declaration/affidavit is incorrect. Without these concise notes a service could be put at risk of being thrown out by the court.

Also of note is the possibility a person has more than one usual place of abode. In this case it appears the defendant was maintaining two places of abode, one in Moses Lake and the other in Yakima.