Boes v. Bisiar

94 P.3d 975
CourtCourt of Appeals of Washington
DecidedJuly 13, 2004
Docket21827-9-III
StatusPublished
Cited by15 cases

This text of 94 P.3d 975 (Boes v. Bisiar) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boes v. Bisiar, 94 P.3d 975 (Wash. Ct. App. 2004).

Opinion

94 P.3d 975 (2004)

Shirley M. BOES, Appellant,
v.
Eric BISIAR and Jane Doe Bisiar, husband and wife, Respondents.

No. 21827-9-III.

Court of Appeals of Washington, Division 3, Panel Nine.

July 13, 2004.

*977 Stephen L. Nordstrom, Attorney at Law, Spokane, WA, for Appellant.

Steven R. Stocker, Matthew T. Ries, Attorneys at Law, Spokane, WA, for Respondent.

SWEENEY, J.

Service by publication first requires a diligent effort to serve and then some showing that the defendant is trying to avoid service. RCW 4.28.100(2). Our disposition here turns on the sufficiency of the plaintiff's showing that the defendant attempted to avoid service. We conclude that leaving the state for the final 10 days of the service period raises a sufficient inference of an attempt to avoid service of process. And we reverse the trial court's holding to the contrary.

FACTS

Eric Bisiar drove his car into Shirley Boes' car and injured her on July 12, 1999. Ms. Boes hired a lawyer, Stephen Nordstrom, on June 17, 2002, a few weeks before the statute of limitations was to run. Mr. Nordstrom secured a copy of the accident report. It included Mr. Bisiar's address and insurance information. He notified Mr. Bisiar's insurer that suit would be filed. He filed a complaint on June 27. He then set about to serve Mr. Bisiar personally.

On July 8, Mr. Nordstrom sent a professional process server to 16902 E. Belmont, Mica, Washington, the address listed on the accident report. The process server talked to the current residents. They had only recently moved in, did not know Mr. Bisiar, and reported that he was not the person who lived there before them. Mr. Nordstrom checked current Qwest Dex and regional telephone directories. He found no listing for Mr. Bisiar. He then made an Internet search of Washington, Oregon, and Idaho. Again he found no information on Mr. Bisiar.

Attorney Steven Stocker filed a notice of appearance on July 15 on behalf of Mr. Bisiar. The standard appearance form requested that "all further pleadings, other than process, be served" on Mr. Stocker. Clerk's Papers (CP) at 27. The form expressly denied waiver of "jurisdiction, venue or sufficiency of process." Id.

Mr. Nordstrom hired private investigator Jerry McGougan on July 19. Mr. McGougan checked police, utility, and voting records. He was unable to find any information on Mr. Bisiar. He did find a reference to a Rosemary Bisiar who lived at 1505 S. Barker Road, in Greenacres, Washington. He called the telephone number and identified himself. A male answered the phone, but hung up before Mr. McGougan could ask any questions.

Mr. Nordstrom gave Mr. McGougan's information to the process server to attempt service at the Greenacres address. On July 14, the process server spoke with a woman at the address who identified herself as Rosemary Bisiar. She is Mr. Bisiar's second cousin. Rosemary Bisiar said that Mr. Bisiar did not live with her. But "she [could] find out where [Mr. Bisiar] lives if we give her some[ ]time." CP at 70. The process server returned on August 10, 11, 23, 26, 28, and 30 and September 3, 5, and 7, but Rosemary Bisiar was never at home. Finally, on September 9, the process server spoke with a female resident. She said she was a distant relative of Mr. Bisiar's, but she had no idea how to reach him. She met him only once when she accidentally received his mail. She said that she thought Mr. Bisiar's stepfather's last name was Petty. But she knew no more about them or how to reach them.

The address listed on the registration for the vehicle Mr. Bisiar was driving at the time of the accident was 8414 North Palmer in Spokane. He claimed the car was his. The process server next attempted to serve Mr. *978 Bisiar at the North Palmer address on September 10. That car was registered to Stanley Fong at the North Palmer address. The process server spoke with a female resident at that address. She said her name was Fong, but Mr. Bisiar did not live there and she had no idea who he was.

On September 17, Mr. Nordstrom prepared an affidavit and summons by publication. The summons was published from September 20 until October 25 in the Valley News Herald, a weekly newspaper. Mr. Bisiar, meanwhile, made arrangements to leave the state. He flew to New York on September 18 and did not return until September 30. The statute of limitations for service purposes ran on September 28, 2002.

Mr. Bisiar moved for summary dismissal of Ms. Boes' suit because he "was never properly served with the Summons and Complaint, and the statute of limitations has expired." CP at 4. Mr. Nordstrom responded with an affidavit supplementing his first affidavit for publication. The court dismissed the complaint. Mr. Nordstrom moved for reconsideration. The court reconsidered and reinstated the complaint. Mr. Bisiar then moved for reconsideration. The court reversed its prior order and again dismissed the complaint. The court concluded that Ms. Boes had not shown that Mr. Bisiar attempted to avoid service of process.

DISCUSSION

STANDARD OF REVIEW

We review the trial court's summary dismissal here de novo. Bruff v. Main, 87 Wash.App. 609, 611, 943 P.2d 295 (1997). A trial court's findings of fact and conclusions of law following a summary judgment are then superfluous. Skimming v. Boxer, 119 Wash.App. 748, 755, 82 P.3d 707 (2004), petition for review filed (Wash. Feb. 26, 2004) (No. 75155-2).

SERVICE BY PUBLICATION

RCW 4.28.100(2)[1] authorizes service by publication when the defendant cannot be found in the state, and, with the intent to avoid service of a summons, he either conceals himself within the state or leaves the state. The plaintiff must also have made reasonably diligent efforts to personally serve the defendant. Charboneau Excavating, Inc. v. Turnipseed, 118 Wash.App. 358, 362, 75 P.3d 1011 (2003).

Mr. Nordstrom filed an affidavit. He filed a supplemental affidavit after service was challenged. We consider both affidavits.[2]

Mr. Bisiar argues that reliance on the hearsay statements from the private investigator about the hang-up call is inappropriate. But he makes this argument for the first time on appeal. This issue is not then preserved. See RAP 2.5(a); Cotton v. Kronenberg, 111 Wash.App. 258, 273, 44 P.3d 878 (2002), review denied, 148 Wash.2d 1011, 62 P.3d 890 (2003). And more importantly, our disposition here does not turn on this representation.

Diligent Effort to Serve

A party claiming jurisdiction pursuant to RCW 4.28.100 must show that service by publication was proper. Charboneau Excavating, 118 Wash.App. at 362, 75 P.3d 1011. A conclusory recitation of the requirements of the statute is not enough to make that showing. Id.

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Bluebook (online)
94 P.3d 975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boes-v-bisiar-washctapp-2004.