Cherokee Bay Community Club, V. Walter E. Bosshart, Et Ano

• Court: Court of Appeals of Washington
• Decided: August 2, 2021
• Docket: 81572-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CHEROKEE BAY COMMUNITY CLUB, ) No. 81572-5-I ) Respondent, ) ) DIVISION ONE v. ) ) WALTER E. BOSSHART and ANA R. ) BOSSHART, husband and wife, and ) their marital community, ) ) UNPUBLISHED OPINION Appellants. ) )

MANN, C.J. — Walter and Ana Bosshart owned property in Maple Valley subject

to the Cherokee Bay Community Club, a homeowners’ association (Association). The

Bossharts appeal the trial court’s default order, as well as its order denying their motion

to vacate default judgment and order of sale. The Bossharts argue that the trial court

erred in (1) determining that the Association performed its due diligence prior to service

by publication; (2) finding no sufficient cause to vacate the judgment under CR 60(b)(1);

and (3) finding no sufficient cause to vacate the judgment under RCW 4.28.200. We

disagree and affirm.

Citations and pin cites are based on the Westlaw online version of the cited material. No. 81572-5-I/2

FACTS

A. The Property

The Bossharts own property in Maple Valley, Washington subject to the

governing documents of the Association. The governing documents include a

declaration of restrictions, covenants and easements, as well as rules and regulations

set out in the “community wide standards.”

The Association determined that the Bossharts did not maintain their property in

accordance with the Association’s governing documents. 1 For example, weeds,

overgrown grass, ivy, and blackberry vines covered the Bossharts’ property, as well as

piles of refuse and three vehicles with expired plates. Neighbors complained of rats and

raccoons coming from the property. In addition, the home on the property was in poor

condition. The front window and back door were broken. The gutters were falling off.

The siding was covered in mildew and much of the paint was worn down to the point

1 For example, the Association’s covenants require that: Each Lot shall be maintained in a clean, sightly condition at all times be kept free of litter, junk, containers, equipment and building materials . . . All refuse from use of lot shall be kept in sanitary containers which shall be concealed from view and regularly emptied.

No Lot shall be used in whole or part for storage of anything which will cause such Lot to appear in an unclean, disorderly or untidy condition. No noxious or offensive activity shall be permitted on any Lot nor shall anything be permitted on any Lot that may be or become a nuisance or unreasonably interfere with the use and enjoyment of any part of the Real Property.

The community wide standards include:

All vehicles parked in a unit’s driveway, must be in running condition and kept in a clean order.

Planting areas must be weeded and edged.

[Lawn] areas cannot exceed 5” in height.

Homes shall be maintained in good repair. Examples: moss removed, gutters attached, porches and decks visible from the roadway in good repair, painting and roofing [in] good repair.

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that wood was visible. Tree branches rested on the roof and one large branch had

punctured the roof. The property was condemned, red-tagged, and squatters had

repeatedly broken into the home.

Over the course of several years, the Association and its legal counsel notified

the Bossharts of the ongoing violations of the governing documents. Pursuant to the

Association’s fine schedule, it began assessing fines against the Bossharts’ property in

May 2019. Consistent with the governing documents, the Association sent notices via

first-class, certified mail to the property, a post office box (P.O. box) provided by the

Bossharts, and by posting a notice on the property. The Bossharts took no action to

ameliorate the property’s condition.

B. Procedure

On May 16, 2019, the Association filed an action for declaratory relief, injunctive

relief, receivership, personal judgment, and a decree of foreclosure, against the

Bossharts. In order to serve the Bossharts, the Association sent a process server to the

Bossharts’ property. After multiple attempts, the Bossharts were never found home.

The Association also mailed notice to the property and the Bossharts’ P.O. box. The

mail was returned marked “no mail receptacle,” “unclaimed,” and “box closed.” The

Association contacted an investigator to locate a current address for the Bossharts.

The investigator searched the King County Tax Assessor’s parcel summary,

Whitepages.com, and Familytreenow.com, all to no avail.

On July 30, 2019, following the failed attempts to locate the Bossharts, the

Association served the summons by publication under RCW 4.28.100. The Bossharts

did not appear. The Association moved for, and was granted, an order of default on

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October 2, 2019. The Association then moved for declaratory relief, injunctive relieve,

personal judgment, and a decree of foreclosure. On October 31, 2019, the trial court

entered an order for declaratory relief, injunctive relief, and default judgment for the

accumulated fines and attorney fees. The judgment and order provided that the

property would be foreclosed and sold in the event of nonpayment of the judgment.

On December 9, 2019, the trial court entered an order supplementing the

judgment in order to account for the costs that the Association incurred while clearing

and repairing the property.

On November 18, 2019, Ana Bosshart called the Association’s attorney and

provided a new mailing address in Seattle. On January 29, 2020, a Sheriff’s notice of

sale was issued setting sale of the Bossharts’ property for March 27, 2020.

On March 16, 2020, the Bossharts moved to vacate the default judgment and

quash the order of sale. On May 28, 2020, the trial court denied the motion. The

Bossharts appeal.

ANALYSIS

A. Service of Process

The Bossharts first argue that the Association’s service by publication was

improper. “Whether service of process is proper is a question of law that we review de

novo.” Davis v. Blumenstein, 7 Wn. App. 2d 103, 111, 432 P.3d 1251 (2019).

Personal jurisdiction requires valid service of process. Rodriguez v. James-

Jackson, 127 Wn. App. 139, 146, 111 P.3d 271 (2005). When personal service is

available, service by publication cannot be used. Dobbins v. Mendoza, 88 Wn. App.

862, 871, 947 P.2d 1229 (1997). When personal service is unavailable, however, the

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Washington Legislature has authorized service by publication. RCW 4.28.100; CR

4(d)(3).

For service by publication to be proper, a plaintiff must strictly comply with RCW

4.28.100. Bruff v. Main, 87 Wn. App. 609, 612, 943 P.2d 295 (1997). First, the person

seeking service by publication must file an affidavit stating that the affiant believes that

the defendant is not a resident of the state, or cannot be found therein, and that he or

she has deposited a copy of the summons and complaint in the post office, directed to

the defendant’s place of residence. RCW 4.28.100. Service by publication of the

summons is allowed in cases, including where the defendant has departed from the

state with intent to avoid service, where the subject of the action is real property and the

defendant claims an interest therein, and when the action is to foreclose or enforce a

lien on real property. RCW 4.28.100(2), (6), (7). The Bossharts do not argue that the

affidavit was insufficient or that summons by publication is not authorized.

In addition to the affidavit, the person seeking service by publication must

demonstrate that they conducted an honest and reasonable search. Martin v.

Meier, 111 Wn.2d 471, 481, 760 P.2d 925 (1988). Although an honest and

reasonable search must be made, not all conceivable search methods are

required. Martin, 111 Wn.2d at 482; Brennan v. Hurt, 59 Wn. App. 315, 319, 796

P.2d 786 (1990).

The Bossharts contend that because the Association possessed Ana’s e-

mail address and telephone number and did not use either of them for service, it

failed to conduct an honest and reasonable search. They additionally argue that

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the Association failed to contact potential relatives listed on whitepages.com. We

disagree.

The e-mail address that the Bossharts assert the Association should have

contacted was located in a database of over 1,000 e-mail addresses that the

Association uses to send bulk e-mails to its more than 860 property owners. The

e-mail addresses in the Association’s database do not include the owner’s last

name or address. The example e-mail that the Bossharts provided was a blanket

solicitation for a food drive, sent to an e-mail address that did not contain their

last name.

The telephone number the Bossharts claim the Association possessed is

likewise unconvincing that the Association’s search was improper. Whether the

number was even in possession of the Association is in dispute. Ana claims that

she noted on her calendar to contact the Association after finding a violation

letter posted to the property. She states that this reminded her to call the

Association’s attorney and ask to speak to him. The attorney denied receiving

these calls, and noted that Ana did not call until months later, after the trial court

had entered the judgment.

The assertion that the Association needed to contact potential relatives on

whitepages.com is also unfounded. The Bossharts did not allege that the

individuals on the website that share the Bossharts’ surname are actual relatives.

The website also provided no contact information for the individuals. The

Bossharts do not offer evidence that, had the Association pursued these leads, it

would have led to locating the Bossharts.

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The Bossharts rely on Pascua v. Heil, 126 Wn. App. 520, 529, 108 P.3d

1253 (2005), Charboneau Excavating, Inc. v. Turnipseed, 118 Wn. App. 358,

363, 75 P.3d 1011 (2003), and Rodriguez, 127 Wn. App. at 146, for the

proposition that the Association’s attempt at personal service was not honest and

reasonable. Each case is distinct from the facts at hand.

In Pascua, the plaintiff was in a motor vehicle accident that produced an

accident report. Pascua, 126 Wn. App. at 529. The court faulted the plaintiff for

failing to use the information in the accident report to contact the driver whose

car the defendant was a passenger in. Pascua, 126 Wn. App. at 529. The court

applied an existing standard that the plaintiff needed to pursue leads in an

accident report. See Martin, 111 Wn.2d at 482. There is no such report

associated with the Bossharts.

In Charboneau, the court criticized the plaintiff’s due diligence by noting

that it did not call the defendant’s daughter whose number it had. Charboneau,

118 Wn. App. at 358. But this was by no means the plaintiff’s sole error: it did

not contact the defendant’s wife whose workplace it knew, did not check the

assessor’s records, and did not serve the correct address obtained by the

process server, and only spent $36 on its attempts of personal service.

Charboneau, 118 Wn. App. at 358. Here, whether the Association ever had the

Bossharts’ number is questionable. In addition, the Association searched for the

Bossharts at their known addresses, checked the assessor’s office, and hired an

investigator to locate the Bossharts.

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In Rodriguez, the plaintiff again failed to utilize information in an accident

report—an insurance company’s phone number. Rodriguez, 127 Wn. App. at

146. Additionally, in his affidavit in support of service by publication, the plaintiff

failed to include any evidence that he used reasonable efforts to locate the

defendant. Rodriguez, 127 Wn. App. at 146. The Association provides ample

support of its attempts to locate and personally serve the Bossharts.

Despite the Bossharts’ assertions, the record supports that the

Association made an honest and reasonable search in an attempt to personally

serve them. The Association sent a process server to the only address that the

Bossharts provided it: their home in Maple Valley. The Bossharts listed this

same address for purposes of notice for any communication from the

Association. The server made multiple attempts to locate the Bossharts in

person, and left notice on the home itself, the same home that Ana declares she

“never abandoned . . . [and] visited . . . regularly to check on things.”

The Association also sent notice to the P.O. box that the Bossharts

provided, again to no avail. When service at the listed addresses was

unsuccessful, the Association employed an investigator, who could only locate

the addresses previously provided by the Bossharts. To supplement its

attempts, the Association searched the King County Assessor’s records,

whitepages.com, and familiytreenow.com—all without success. Following these

unsuccessful attempts to locate the Bossharts, it was reasonable for the

Association to pursue service by publication. Thus, service by publication was

proper service on the Bossharts.

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B. CR 60(b)(1)

The Bossharts argue next that the trial court abused its discretion in finding

insufficient cause to vacate the judgment under CR 60(b)(1). We disagree.

We review the trial court’s decision not to vacate a judgment for abuse of

discretion. A trial court abuses its discretion when it is exercised on untenable grounds

or for untenable reasons. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007).

CR 60(b)(1) provides for relief from any judgment for “mistakes, inadvertence,

surprise, excusable neglect or irregularity in obtaining a judgment or order.” Courts

apply a four-prong test to determine if a default judgment should be vacated under CR

60(b)(1): (1) that there is substantial evidence supporting a prima facie defense; (2) that

the failure to timely appear and answer was due to mistake, inadvertence, surprise, or

excusable neglect; (3) that the defendant acted with due diligence after notice of the

default judgment; and (4) that the plaintiff will not suffer a substantial hardship if the

default judgment is vacated. White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 587 (1968).

The trial court found that the Bossharts did not submit evidence of a prima facie

defense, did not act with due diligence, and that vacating the Association’s judgment

would cause it undue hardship. In doing so, the court did not abuse its discretion.

To establish a prima facie defense, the Bossharts may not merely state

allegations and conclusions. Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin,

Todd & Hokanson, 95 Wn. App. 231, 239, 974 P.2d (1999). To assert their defense, the

Bossharts submitted a declaration from Ana that the Association violated its notice

requirements and caused many of the problems on the property. This assertion is

unsupported and strongly contradicted by evidence in the record.

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The Association submitted numerous documentary and photographic evidence of

the Bossharts’ violations. The record demonstrates that the Bossharts had been

violating the Association’s governing documents for years. There were vehicles sitting

on the property, the most functional of which had ivy growing through the tire rims.

There was garbage throughout the property. The gutters were falling off of the home.

As opposed to the Bossharts’ declaration that “there was only one tree branch on the

roof,” half of a maple tree had fallen through the roof into the Bossharts’ home. The

Bossharts did not offer a prima facie defense against these well-documented

allegations.

Furthermore, the Bossharts do not demonstrate that their failure to timely appear

was due to surprise. Relief may be available for surprise when there is a valid reason

for misunderstanding. See, e.g., Spoar v. Spokane Turn-Verein, 64 Wash. 208, 212,

116 P.627 (1911) (holding that relief under surprise was available when a non-United

States native believed that he need not appear until trial). Here, however, the

Bossharts do not demonstrate a valid reason for misunderstanding. The Bossharts

neglected their property that was subject to years of fines by the Association, failed to

monitor communications from the Association to the addresses that the Bossharts

provided, and claimed surprise upon discovering that a default judgment had been

entered against them. These actions do not warrant relief.

Finally, vacating the Association’s judgment would cause undue hardship. The

Association spent ample time and resources correcting the property’s deficiencies. The

Association removed the vehicles, garbage, and tree debris. It patched holes in the

windows and tarped the roof. Vacating the judgment would cause the Association

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substantial hardship, including requiring the Association to absorb the costs of

mitigating the Bossharts’ years of neglect to the property. As a result of both the lack of

prima facie defense and an imposition of undue hardship, the trial court did not abuse

its discretion in denying the motion to vacate.

C. RCW 4.28.200

The Bossharts argue finally that the trial court abused its discretion in finding

insufficient cause shown to vacate the judgment under RCW 4.28.200. 2 We disagree.

We likewise review the trial court’s decision not to vacate a judgment under RCW

4.28.200 for an abuse of discretion. Morin, 160 Wn.2d at 753. To vacate a judgment

under RCW 4.28.200, the Bossharts must not have been served personally with a

complaint and further show “sufficient cause” for a vacatur. Caouette v. Martinez, 71

Wn. App. 69, 77, 856 P.2d 725 (1993).

For the same reasons relief was not available under CR 60(b)(1) it is not

available under RCW 4.28.200. After numerous honest and reasonable attempts were

made to locate the Bossharts, service by publication by the Association was proper.

Further, the Bossharts have not proffered evidence to rebut the Association’s

documentation of numerous violations of its governing documents. As a result, the trial

2 The right of a party to appear and defend or reopen following constructive service is as follows:

If the summons is not served personally on the defendant in the cases provided in RCW 4.28.110 and 4.28.180, he or she or his or her representatives, on application and sufficient cause shown, at any time before judgment, shall be allowed to defend the action and, except in an action for divorce, the defendant or his or her representative may in like manner be allowed to defend after judgment, and within one year after the rendition of such judgment, on such terms as may be just; and if the defense is successful, and the judgment, or any part thereof, has been collected or otherwise enforced, such restitution may thereupon be compelled as the court directs. RCW 4.28.200.

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court did not abuse its discretion in determining that there was not sufficient cause to

vacate the judgment.

D. Costs and Attorney Fees on Appeal

The Association requests attorney fees on appeal under RAP 18.1. Under RAP

18.1, a party may request reasonable attorney fees on appeal if an applicable law

grants the party the right to recover. The Association requests attorney fees based on

the attorney fees provision 3 in its governing documents. We generally recognize a

provision in a contract allowing attorney fees to include fees on appeal as well as at

trial. Edmundson v. Bank of America, 194 Wn. App. 920, 932-33, 378 P.3d 272 (2016).

Because the Association’s governing document’s provision provides for costs and

attorney fees, and because the Association prevails, we award costs and fees on

appeal subject to compliance with RAP 18.1.

Affirmed.

WE CONCUR:

3 The provision states: The parties in interest in and to any part of the Real Property and the Club, for the benefit of the owners of the Real Property and each of them shall have the right and authority to enforce the provisions hereof and in addition to any other remedy for the damages or otherwise, shall have the right to injunctive relief. Except for the foreclosure of the lien provided for in Paragraph 3, Article D, the Club, if successful, in any action to enforce any provision hereof shall recover a reasonable sum as attorney’s fees together with the reasonable costs of searching and abstracting the public record which sums shall be paid by the unsuccessful party.

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