Barr v. Interbay Citizens Bank of Tampa

649 P.2d 827, 96 Wash. 2d 692
CourtWashington Supreme Court
DecidedJanuary 4, 1982
Docket47231-9
StatusPublished
Cited by77 cases

This text of 649 P.2d 827 (Barr v. Interbay Citizens Bank of Tampa) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barr v. Interbay Citizens Bank of Tampa, 649 P.2d 827, 96 Wash. 2d 692 (Wash. 1982).

Opinions

Dolliver, J.

This is an appeal from a trial court ruling which denied a motion that Florida law be applied to this case on the issue of punitive damages.

In January of 1977, Neumon Vann was in Tampa, Florida on business. He saw a 1975 Lincoln Continental for sale. Aware that a friend of his was looking for such a car, Vann inquired about and ultimately purchased the Continental from its owner, R. D. Young. He paid $6,650 with a check payable to the Exchange Bank of West Shore, which bank held a lien on the automobile. By agreement, as soon as Vann's check cleared his bank, the Exchange Bank of West Shore was to send clear title to him. Instead, the bank sent the title to Young.

In the meantime, Vann drove the automobile from Florida to California where his friend, George Barr, was visiting from Tacoma, Washington. Barr looked the car over and decided to buy it. On February 18, 1977, Barr gave Vann a check for $4,000, together with his 1974 Ford LTD. Vann explained the situation regarding the title certificate and gave his assurance that the title would be in Tacoma before Barr returned there, but upon Barr's return the certificate had not arrived.

During the ensuing months, while Barr attempted to secure the title, Young had taken out a loan from the Interbay Citizens Bank of Tampa, Florida, and given title to the car as collateral for the loan. In time, Interbay Citizens Bank initiated repossession of the car by contacting an attorney in Las Vegas, the residence of Vann and apparently where the bank believed the car to be located. The [695]*695attorney in Las Vegas contacted persons in Las Vegas for purposes of repossession. After discovering the car was located in Tacoma, these same persons then took the car from Barr and returned it to Nevada. Later the parties agreed the car would be returned to Barr in Tacoma by September 23, 1977, but the car was not delivered in Tacoma until October 10, 1977. By this time he had purchased another car and refused to accept the Lincoln Continental when it arrived.

On January 19, 1978, the plaintiff filed an action in Pierce County Superior Court alleging damages for conversion, intentional infliction of emotional distress, and outrageous conduct on the part of the defendant, Interbay Citizens Bank of Tampa, Florida. Defendant answered denying the material allegations in the complaint.

On November 22, 1978, plaintiff brought a motion seeking an order that Florida law on the issue of punitive damages would apply to the case. This motion was denied by the court. At trial, all claims of the plaintiff, except that for punitive damages, were submitted to the jury, which returned a verdict in favor of the plaintiff on the 19th day of May, 1979, in the amount of $36,816.

Defendant and plaintiff filed timely notices of appeal and cross appeal. The appeal was dismissed, leaving only the cross appeal (which pertains to the absence of a jury instruction on punitive damages) to be resolved. We accepted transfer of this case from the Court of Appeals.

Initially, defendant claims lack of jurisdiction by the trial court in that plaintiff failed to comply with RCW 4.28.185(4), relative to personal service outside the state. As recognized by the comment of this court in granting the motion of plaintiff to transfer this matter from the Court of Appeals:

Barr was originally the respondent-cross-appellant as the initial notice of appeal in this matter was filed by the opposing party, Interbay Citizens Bank of Tampa, Florida (Bank). The Bank has since abandoned its appeal, however, and thus is now before the court strictly in the [696]*696capacity of a respondent.

We concur in this view that defendant waived any question of insufficiency of process or service of process. CR 12(b)(4), (5).

Nevertheless, the bank argues this is a jurisdictional question which can be raised at any time and that since plaintiff did not comply with the statute the judgment of the trial court is void.

RCW 4.28.185(4) reads:

Personal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state.

In fact, affidavits were submitted on behalf of defendant which stated defendant was not licensed to do business in Washington, had no officers, agents or employees in Washington, transacts no business in Washington of any sort and that all of its employees are citizens of Florida. We have held that "substantial and not strict compliance is sufficient where a proper affidavit is filed, although late, where it appears that no injury was done the defendant as a result of the late filing." Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wn.2d 469, 472, 403 P.2d 351 (1965); Whitney v. Knowlton, 33 Wash. 319, 74 P. 469 (1903). No injury is claimed here nor is there a showing the long-arm statute was being used to burden or harass defendant.

The logical conclusion from the language in the affidavits is that there were no authorized personnel in Washington for plaintiff to serve. The affidavits are thus, in the language of the statute, "to the effect that service cannot be made within the state." As they were filed before judgment, the affidavits were timely. Schell v. Tri-State Irrigation, 22 Wn. App. 788, 591 P.2d 1222 (1979). There is no requirement in the statute that the affidavits must be filed by plaintiff. There has been substantial compliance with RCW 4.28.185(4).

The main issue to be decided is whether the trial court was required to apply the law of Florida to plaintiff's claim for punitive damages. The courts of Washington and Flo[697]*697rida have made conflicting policy decisions with respect to the allowance of punitive damages. Under the law of this state, punitive damages are not allowed unless expressly authorized hy the legislature. Steele v. Johnson, 76 Wn.2d 750, 458 P.2d 889 (1969); Maki v. Aluminum Bldg. Prods., 73 Wn.2d 23, 436 P.2d 186 (1968); Conrad v. Lakewood Gen. Hosp., 67 Wn.2d 934, 410 P.2d 785, 10 A.L.R.3d 1 (1966). Under the law of Florida, however, punitive damages may be awarded. Miami Beach Lerner Shops, Inc. v. Walco Mfg. of Fla., Inc., 106 So. 2d 233 (Fla. Dist. Ct. App. 1958).

In determining the appropriate choice of law, this court has rejected the lex loci delicti choice-of-law rule and has adopted the most significant relationship rule for contracts and tort choice-of-law problems. Johnson v. Spider Staging Corp., 87 Wn.2d 577, 555 P.2d 997

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Bluebook (online)
649 P.2d 827, 96 Wash. 2d 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barr-v-interbay-citizens-bank-of-tampa-wash-1982.