FILED APRIL 2, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
EGP INVESTMENTS, LLC, a ) Washington limited liability company, ) No. 35734-1-III ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION MARVIN R. FREAR JR, individually, ) and the marital community comprised of ) MARVIN R. FREAR JR and JANE DOE ) FREAR, husband and wife, ) ) Appellants. )
KORSMO, J. — Marvin and Laurie Frear appeal from a trial court ruling denying
their request to vacate a 2011 default judgment against them. Concluding that the trial
court did not err, we affirm.
FACTS
EGP Investments obtained a judgment in the Spokane County District Court
against the Frears for unpaid credit card debt in 2011. The process server, Stanley
Rhodes, filed a return of service indicating that he had served the summons and
complaint on May 29, 2011, by leaving a copy with “Dave Nolan, roommate, a person of
reasonable age and discretion, then resident therein.” Clerk’s Papers (CP) at 79. The No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
affidavit further identified Nolan as a white male, 30 years of age, standing 5’9” and
weighing 150 pounds. CP at 79.
The Frears did not appear and a judgment was entered against them. EGP mailed
garnishment documents to the home a year later. Laurie Frear signed for them. CP at 44,
49-51. Believing that they referred to another legal matter they had pending, the Frears
did not respond to the garnishment.
The clerk of the superior court advised the Frears about the judgment in
September 2016, and they contacted EGP on September 23, 2016. Represented by
counsel, they moved to vacate the judgment on October 10, 2017. They filed affidavits
confirming that they lived at the house where service was allegedly made, that Nolan had
never lived there, and that they had never received any papers from Nolan. Nolan filed
an affidavit stating that he never lived with the Frears and had lived elsewhere at the time
of service. He visited the Frears regularly, but denied ever being served with papers
when visiting them. He also provided a copy of his driver’s license to confirm that his
height was 6’4” and could not have been the person served by Rhodes.
Rhodes filed his own affidavit confirming that he had served a man claiming to be
Nolan, a resident of the home, on May 29, 2011. Observing that residence in the summer
of 2017, he believed that Mr. Frear fit the description of the man he had served six years
earlier. He believed Frear was the one he had served.
2 No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
The trial court heard argument on the motion to vacate and denied the request.
The court noted that the Frears had waited a long time and should have known about the
judgment sooner than they claimed to know. The court determined that Rhodes did serve
someone at the house, but declined the request by the Frears to name who that person was
since “I don’t need to go there.”
The court awarded EGP its costs in accordance with a contractual provision. The
Frears then timely appealed to this court. A panel considered the case without hearing
argument.
ANALYSIS
This appeal presents contentions that the court erred in rejecting the motion to
vacate and in awarding costs. Both parties seek costs in this court. We address the three
issues in the order listed.
Motion to Vacate
The Frears argue that the original affidavit of service was shown to be erroneous,
requiring the judgment to be set aside. However, they did not prove that argument.
CR 60 allows a party to challenge a judgment for a number of reasons, including
when the judgment is void. CR 60(b). A judgment can be void for a number of
interrelated reasons, including having been entered (1) without jurisdiction, (2) as a result
of improper service, or (3) with inadequate notice in violation of due process. In re
Marriage of Ortiz, 108 Wn.2d 643, 649, 740 P.2d 843 (1987); Sheldon v. Sheldon, 47
3 No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
Wn.2d 699, 702, 289 P.2d 335 (1955); State v. Fishing Appliances, 170 Wash. 426, 428,
16 P.2d 822 (1932). Although most challenges under CR 60 must be brought within one
year, a challenge to an allegedly void judgment need only be brought within a reasonable
time. CR 60(b).1
This court normally reviews a decision under CR 60 for abuse of discretion, but a
trial court must grant the motion where the judgment is void. Dobbins v. Mendoza, 88
Wn. App. 862, 871, 947 P.2d 1229 (1997). Thus, this court reviews de novo whether a
trial court erred by failing to grant a motion to vacate a void judgment. Id. It is the
burden of the party claiming defective service to prove that there was no valid service.
Woodruff v. Spence, 76 Wn. App. 207, 210, 883 P.2d 936 (1994). The post-judgment
moving party has the same burden of upsetting an affidavit of service that the party would
have prior to judgment. Id. Moreover, the fact that an affidavit of service may be
defective in some manner is not the equivalent of saying that service was not properly
accomplished. CR 4(g)(7). When an affidavit is insufficient, a plaintiff may file an
amended affidavit or provide additional evidence. Williams v. S.S. Mut. Underwriting
Ass’n, 45 Wn.2d 209, 226-227, 273 P.2d 803 (1954).
1 We do not read the trial court’s oral ruling as finding that the motion was untimely brought, so we do not discuss that concern.
4 No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
Here, the Frears demonstrated that Nolan was not the person served by Rhodes.
However, this does not mean that service was not properly accomplished. The trial court
found that Rhodes served someone at the house claiming to be Nolan. While the evidence
suggested that the “someone” was in fact Mr. Frear, the trial court correctly noted that it
did not have to specify who was served. The evidence presented did not establish that
service was not properly accomplished. The fact that the person’s name was unknown
does not diminish the fact that service was properly accomplished on a person living at the
residence.
The trial court did not err in concluding that the Frears failed to demonstrate that
service was invalid. They did not satisfy CR 60(b)(5); the trial court therefore correctly
rejected the motion to vacate.
Attorney Fees and Costs in the Trial Court
The Frears also contend that the trial court erred in granting attorney fees to EGP,
claiming that EGP was not properly licensed as a collection agency at the time. After
briefs were filed in this appeal, we rejected this argument in Fireside Bank v. Askins, 6
Wn. App. 2d 431, 430 P.3d 1145 (2018).
Free access — add to your briefcase to read the full text and ask questions with AI
FILED APRIL 2, 2019 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
EGP INVESTMENTS, LLC, a ) Washington limited liability company, ) No. 35734-1-III ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION MARVIN R. FREAR JR, individually, ) and the marital community comprised of ) MARVIN R. FREAR JR and JANE DOE ) FREAR, husband and wife, ) ) Appellants. )
KORSMO, J. — Marvin and Laurie Frear appeal from a trial court ruling denying
their request to vacate a 2011 default judgment against them. Concluding that the trial
court did not err, we affirm.
FACTS
EGP Investments obtained a judgment in the Spokane County District Court
against the Frears for unpaid credit card debt in 2011. The process server, Stanley
Rhodes, filed a return of service indicating that he had served the summons and
complaint on May 29, 2011, by leaving a copy with “Dave Nolan, roommate, a person of
reasonable age and discretion, then resident therein.” Clerk’s Papers (CP) at 79. The No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
affidavit further identified Nolan as a white male, 30 years of age, standing 5’9” and
weighing 150 pounds. CP at 79.
The Frears did not appear and a judgment was entered against them. EGP mailed
garnishment documents to the home a year later. Laurie Frear signed for them. CP at 44,
49-51. Believing that they referred to another legal matter they had pending, the Frears
did not respond to the garnishment.
The clerk of the superior court advised the Frears about the judgment in
September 2016, and they contacted EGP on September 23, 2016. Represented by
counsel, they moved to vacate the judgment on October 10, 2017. They filed affidavits
confirming that they lived at the house where service was allegedly made, that Nolan had
never lived there, and that they had never received any papers from Nolan. Nolan filed
an affidavit stating that he never lived with the Frears and had lived elsewhere at the time
of service. He visited the Frears regularly, but denied ever being served with papers
when visiting them. He also provided a copy of his driver’s license to confirm that his
height was 6’4” and could not have been the person served by Rhodes.
Rhodes filed his own affidavit confirming that he had served a man claiming to be
Nolan, a resident of the home, on May 29, 2011. Observing that residence in the summer
of 2017, he believed that Mr. Frear fit the description of the man he had served six years
earlier. He believed Frear was the one he had served.
2 No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
The trial court heard argument on the motion to vacate and denied the request.
The court noted that the Frears had waited a long time and should have known about the
judgment sooner than they claimed to know. The court determined that Rhodes did serve
someone at the house, but declined the request by the Frears to name who that person was
since “I don’t need to go there.”
The court awarded EGP its costs in accordance with a contractual provision. The
Frears then timely appealed to this court. A panel considered the case without hearing
argument.
ANALYSIS
This appeal presents contentions that the court erred in rejecting the motion to
vacate and in awarding costs. Both parties seek costs in this court. We address the three
issues in the order listed.
Motion to Vacate
The Frears argue that the original affidavit of service was shown to be erroneous,
requiring the judgment to be set aside. However, they did not prove that argument.
CR 60 allows a party to challenge a judgment for a number of reasons, including
when the judgment is void. CR 60(b). A judgment can be void for a number of
interrelated reasons, including having been entered (1) without jurisdiction, (2) as a result
of improper service, or (3) with inadequate notice in violation of due process. In re
Marriage of Ortiz, 108 Wn.2d 643, 649, 740 P.2d 843 (1987); Sheldon v. Sheldon, 47
3 No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
Wn.2d 699, 702, 289 P.2d 335 (1955); State v. Fishing Appliances, 170 Wash. 426, 428,
16 P.2d 822 (1932). Although most challenges under CR 60 must be brought within one
year, a challenge to an allegedly void judgment need only be brought within a reasonable
time. CR 60(b).1
This court normally reviews a decision under CR 60 for abuse of discretion, but a
trial court must grant the motion where the judgment is void. Dobbins v. Mendoza, 88
Wn. App. 862, 871, 947 P.2d 1229 (1997). Thus, this court reviews de novo whether a
trial court erred by failing to grant a motion to vacate a void judgment. Id. It is the
burden of the party claiming defective service to prove that there was no valid service.
Woodruff v. Spence, 76 Wn. App. 207, 210, 883 P.2d 936 (1994). The post-judgment
moving party has the same burden of upsetting an affidavit of service that the party would
have prior to judgment. Id. Moreover, the fact that an affidavit of service may be
defective in some manner is not the equivalent of saying that service was not properly
accomplished. CR 4(g)(7). When an affidavit is insufficient, a plaintiff may file an
amended affidavit or provide additional evidence. Williams v. S.S. Mut. Underwriting
Ass’n, 45 Wn.2d 209, 226-227, 273 P.2d 803 (1954).
1 We do not read the trial court’s oral ruling as finding that the motion was untimely brought, so we do not discuss that concern.
4 No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
Here, the Frears demonstrated that Nolan was not the person served by Rhodes.
However, this does not mean that service was not properly accomplished. The trial court
found that Rhodes served someone at the house claiming to be Nolan. While the evidence
suggested that the “someone” was in fact Mr. Frear, the trial court correctly noted that it
did not have to specify who was served. The evidence presented did not establish that
service was not properly accomplished. The fact that the person’s name was unknown
does not diminish the fact that service was properly accomplished on a person living at the
residence.
The trial court did not err in concluding that the Frears failed to demonstrate that
service was invalid. They did not satisfy CR 60(b)(5); the trial court therefore correctly
rejected the motion to vacate.
Attorney Fees and Costs in the Trial Court
The Frears also contend that the trial court erred in granting attorney fees to EGP,
claiming that EGP was not properly licensed as a collection agency at the time. After
briefs were filed in this appeal, we rejected this argument in Fireside Bank v. Askins, 6
Wn. App. 2d 431, 430 P.3d 1145 (2018).
In order to pursue collection work in Washington, a collection agency must be
properly licensed in this state. RCW 19.16.110; RCW 19.16.250(1). Violations of the
collection agency act (ch. 19.16 RCW) also constitute violations of the consumer
protection act (ch. 19.86 RCW). RCW 19.16.440. An entity that violates RCW 19.16.250
5 No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
may lose the right to collect interest and costs; recovery is limited to the amount of the
original claim. RCW 19.16.450.
In Askins, we recently concluded that a party cannot assert a collection agency act
claim as a defense to a collection action. 6 Wn. App. 2d at 437-439. Instead, violations of
the act must be pursued as consumer protection act claims by filing an action or
counterclaim under chapter 19.86 RCW. Id.
Accordingly, we reject the Frears’ challenge in light of Askins.
Attorney Fees on Appeal
Both parties seek attorney fees in this court. Since the Frears do not prevail, we
deny their claim.
EGP claims fees under the original credit card contract. RCW 4.84.330. Although
a copy of the contract is attached to the pleadings filed in the trial court, that copy is not
signed by the Frears. The existence of the original judgment against the Frears, supported
by a standard contract containing an attorney fees provision, allowed the trier of fact to
conclude that the Frears were parties to the agreement. The trial court implicitly made
such a determination here, a decision supported by the evidence.
However, this court declines at this time to make the same finding. In the absence
of a contract signed by the Frears, we deny attorney fees on appeal to EGP. We caution
the parties not to read more into this aspect of our ruling than the fact that we are denying
6 No. 35734-1-III EGP Invest., LLC v. Marvin Frear, et ux.
the fees. Neither party should consider this an invitation to further litigation of this
matter.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
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