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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DEBRA CHEESMAN, individually                )
and RICHARD CHEESMAN,                       )       No. 66134-5-I
individually, and DEBRA CHEESMAN            )
and RICHARD CHEESMAN, as                    )       DIVISION ONE
Co-Guardians of ALISSON                     )
CHEESMAN, a minor, ASHLEY                   )
HANKS, fka ASHLEY JOHNSON,)
                                            )
                      Appellants,           )
                                            )
              v.                            )
                                            )
MICHAEL J. ROWSE and JANE DOE               )       UNPUBLISHED OPINION 
ROWSE, individually and as husband          )
and wife, MICHAEL ALAN ROWSE                )       FILED:  April 23, 2012
and JANE DOE ROWSE, individually            )
and as husband and wife,                    )
                                            )
                      Respondents.          )
________________________________)

       Becker, J.  --  Plaintiffs injured in a collision filed a personal injury 

complaint and twice served defendant's brother at the brother's house in Everett.  

The defendant answered and asserted that the plaintiffs failed to properly serve 

the defendant before expiration of the statute of limitations.  The trial court held 

an evidentiary hearing, determined that the plaintiffs had not properly completed

substitute service because the defendant had never maintained a domicile at the  

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brother's house, and dismissed the case as to all but one plaintiff.

       Plaintiffs appeal, arguing that the trial court failed to apply the proper

standard and burden of proof, made findings of fact without the support of 

substantial evidence, and entered erroneous conclusions. Because substantial 

evidence supports the findings of fact and the trial court properly concluded that 

the brother's house had never been, and was not therefore at the time of 

service, a place of usual abode for the defendant, we affirm.

                                        FACTS

       On December 20, 2003, in Granite Falls, Washington, Michael Rowse 

failed to stop at a stop sign and drove his pickup truck into a 1999 Dodge 

Durango occupied by driver Debra Cheesman and passengers Richard 

Cheesman, Alisson Cheesman, and Ashley Hanks.  At the time of the accident, 

Rowse and his wife Sheree lived in Granite Falls.  

       The Cheesmans filed a personal injury complaint on December 13, 2006.  

On February 14, 2007, a process server delivered copies of the summons and 

complaint for Michael J and Jane Doe Rowse to a "JOHN DOE 

ROWSE/BROTHER/CO-RESIDENT WHO REFUSED HIS NAME" at a house on 

24th Drive Southeast in Everett, Washington. On March 7, 2007, the 

Cheesmans filed an amended complaint.  A process server delivered copies for 

Michael J and Jane Doe Rowse to "JOHN DOE ROWSE/BROTHER/CO-

RESIDENT" at the same Everett address on March 7, 2007. 

       Thereafter, the Rowses appeared through counsel and filed an answer,

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asserting as an affirmative defense that the Cheesmans failed to properly serve 

them before the statute of limitations expired.  The Rowses later filed a motion 

for summary judgment dismissal based on the lack of service.  The Rowses 

admitted that they lived in Granite Falls at the time of the accident but provided 

evidence that Sheree moved to Arkansas in 2005.  Also in 2005, Michael moved 

in with his father, Anthony Rowse, in Oak Harbor, for a few months, until finally 

moving to Arkansas in December 2005. The Rowses produced telephone bills 

and bank statements addressed to them at an address on Lee Street in 

Huntsville, Arkansas. They also produced deposition testimony and declarations 

to establish that the house on 24th Drive Southeast in Everett belonged to 

Michael's brother, David Rowse, and that Michael had never lived there. 

       In response, the Cheesmans produced evidence that a request had been 

filed with the post office to forward Michael's mail to the Everett address and that 

David Rowse had admitted that he received mail addressed to Michael at his 

house in Everett.  The Cheesmans also claimed that the process server 

indicated that David admitted that Michael lived at the Everett address at the 

time of service.  The trial court denied the motion for summary judgment and 

ordered a hearing to determine whether the Everett address was Michael's usual 

abode at the time of service.

       At the hearing, the Cheesmans presented testimony of a private 

investigator and a process server.  The private investigator testified that she 

located an Oak Harbor address associated with Michael Rowse and then made 

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a number of requests for information to the post office regarding a forwarding 

address.  The investigator learned that Anthony Rowse requested forwarding 

service for his family from the Oak Harbor address to an address on 24th Drive 

Southeast in Everett, effective December 1, 2006. The process server testified 

by referring to his affidavits describing the circumstances of the service.  The 

affidavit for the February 14 service states:

       A male answered the door and I indicated I have legal papers for 
       Michael Rowse.  He said he is not home right now.  I asked if he 
       lives here (meaning the John Doe), He indicated he does and he is 
       the subjects brother.  I told him I could leave the papers with him at 
       which time he accepted but would not give me his name.

The process server also testified that he believed Michael was a "coresident" in 

the house because the man at the door said Michael "wasn't home, he was out 

driving a truck." When the "same resident came to the door" on March 7, the 

process server "asked if Michael was home in which he said he wasn't.  He 

accepted the papers again but again would not give me his name."

       Michael Rowse testified that he lost his Granite Falls house in foreclosure 

sometime in 2005 and moved in with his father in Oak Harbor.  After living in his 

father's garage for two or three months, Michael moved to Arkansas.  He 

testified that he never lived in his brother's house in Everett, although he may 

have spent one or two nights there when leaving for Arkansas and when he was 

in the area while working as a long-haul truck driver. He testified that he never 

used his brother's address in Everett for any purpose, such as for forwarding 

mail, for a work reference, or for bills or magazines. David testified that Michael 

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had never lived with him in Everett.  David also testified that he did not tell the 

process server that Michael lived at his house.  David testified that he had 

forwarded his father's mail to his own address by signing for Anthony as power 

of attorney and that he was required to forward mail for the entire family.  He 

testified that he only received "junk mail," such as advertisements, at his own 

address for Michael, and that he threw them away.

       Following the hearing, the trial court determined that neither Michael nor 

Sheree Rowse ever maintained a domicile at the house on 24th Drive Southeast 

in Everett, that the Rowses had not been properly served, and that the statute of 

limitations had expired except with regard to the claims of Allison Cheesman, a 

minor.  The court entered findings of fact and conclusions of law and dismissed 

the case with prejudice as to three of the plaintiffs and without prejudice as to 

Allison Cheesman.

       The Cheesmans appeal.

                                    DISCUSSION

       Personal injury actions must be commenced within three years.  RCW 

4.16.080.  An action may be commenced by filing a complaint as long as the 

summons and complaint is served on the defendant within 90 days.  CR 3(a); 

RCW 4.16.170. Substitute service of process is effective when a copy of the 

summons is left at the defendant's "usual abode with some person of suitable 

age and discretion then resident therein." RCW 4.28.080(15); Blankenship v. 

Kaldor, 114 Wn. App. 312, 316, 57 P.3d 295 (2002), review denied, 149 Wn.2d 

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1021 (2003).  Although the term "usual abode" is liberally construed and a 

person may have more than one place of usual abode, substitute service must 

be accomplished at "a center of domestic activity" where the defendant "would 

most likely receive notice of the pendency of a suit if left with a family member."  

Sheldon v. Fettig, 129 Wn.2d 601, 610, 919 P.2d 1209 (1996).  Whether a 

residence is a place of usual abode is a question of law that we review de novo.  

Blankenship, 114 Wn. App. at 316.

       When the trial court has weighed the evidence, our review is limited to 

determining whether substantial evidence supports the findings and, if so, 

whether the findings in turn support the trial court's conclusions of law.  

Ridgeview Props. v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982).  

Substantial evidence exists when the evidence is in "sufficient quantum to 

persuade a fair-minded person of the truth of the declared premise."  Ridgeview,

at 719.  

       The Cheesmans first claim that the trial court failed to accord presumptive 

correctness to the affidavits of service and failed to require the Rowses to prove 

by clear and convincing evidence that the service was improper.  See, e.g., Leen 

v. Demopolis, 62 Wn. App. 473, 478, 815 P.2d 269 (1991) (where default 

judgment has been entered based upon affidavit of service that is regular in form 

and substance and therefore presumptively correct, the person attacking service 

bears the burden to show by clear and convincing proof that the service was 

improper), review denied, 118 Wn.2d 1022 (1992); Woodruff v. Spence, 76 Wn. 

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App. 207, 210, 883 P.2d 936 (1994) (same); but see Farmer v. Davis, 161 Wn. 

App. 420, 427-30, 250 P.3d 138 (refusing to apply heightened burden of proof to 

defendant where no judgment was being attacked and requiring plaintiff to prove 

validity of service where defendant appeared in the action and put plaintiff on 

notice that sufficiency of process was at issue by affirmative defense), review

denied, 172 Wn.2d 1019 (2011). The Rowses have not responded to this 

argument and do not address the applicable standard or burden of proof.

       At the hearing, the Cheesmans cited authority and argued that the trial 

court must presume that the affidavits of service were correct and that the 

Rowses had the burden to show by clear and convincing evidence that service 

was improper.  The Rowses did not argue for a different standard and did not 

attack the validity of the affidavits.  Instead, the Rowses argued that the central 

question was whether the Everett house was a place of usual abode for Michael, 

which would be required for proper substitute service.  Although the trial court's 

findings of fact and conclusions of law do not explicitly state the burden of proof 

applied here, it is clear from the oral ruling that the trial court presumed the 

affidavits to be valid.  "So for the purpose of this case, the court's going to 

accept the declarations of service as stated valid on their face, and that service 

was effected twice on the brother at that residence."  Nothing in the record 

indicates that the trial court resolved the only question raised regarding the 

affidavits and the process server's testimony, which David disputed in his 

testimony, of whether David actually indicated to the process server that Michael 

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lived at the Everett house.  Rather, it appears that the trial court considered all 

the evidence presented at the hearing to make its findings.  The trier of fact must 

weigh the evidence and determine whether it meets the applicable standard; the 

appellate function is to determine whether there is substantial evidence to 

support the facts as found.  See Bland v. Mentor, 63 Wn.2d 150, 154, 385 P.2d 

727 (1963).  Under these circumstances, the Cheesmans fail to demonstrate any 

error regarding the weight assigned to the evidence by the trial court or its 

allocation of the burden of proof.

       And the Cheesmans fail to establish that the challenged findings of fact 

are not supported by substantial evidence.  The Cheesmans challenge the trial 

court's findings that (1) Michael Rowse lived in Arkansas at the time the suit was 

filed, (2) Michael Rowse never resided with his brother at the house in Everett,

and (3) Michael Rowse did not request any transfer of his mail to his brother's 

house in Everett.  Michael Rowse testified that he had moved to Arkansas in 

2005 and produced an Arkansas driver's license issued December 27, 2006.  He 

also testified that he had never lived with David and that he had never forwarded 

his mail to David's address.  David Rowse also testified that Michael had never 

lived with him at the Everett house and that he (David) was the person who 

signed the request to forward mail addressed to the family of Anthony Rowse.  

As the trier of fact, the trial court was entitled to find David's trial testimony more 

credible than his statement at his earlier deposition that he did not recall 

requesting forwarding service for Anthony.  Such credibility determinations are 

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not subject to appellate review.  Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 

Wn.2d 364, 369-70, 798 P.2d 799 (1990).

       The Cheesmans also complain that the trial court did not determine 

whether Michael Rowse had more than one residence or where substitute 

service could have been accomplished, given Michael's admission that he lived 

in his truck for all but a few days each month.  See Sheldon, 129 Wn.2d at 610 

(defendant had two places of usual abode: Chicago apartment where she had 

bank account and health club membership, and father's house in Seattle where 

she stayed when in Seattle, kept her belongings, and registered to vote).  But 

the Cheesmans fail to identify any authority requiring the trial court to make such 

findings.  The only essential inquiry was whether the Everett house was a place 

of usual abode for Michael.  See Blankenship, 114 Wn. App. at 316 (where 

defendant challenged validity of substitute service, relevant inquiry is whether at 

the critical time the house where the plaintiff served the summons was a center 

of domestic activity for the defendant).

       Here, the trial court correctly determined that David's home was not a 

center of domestic activity for Michael.  He never lived at David's Everett home 

or stored any belongings there, except for a rifle that he retrieved some time 

before the lawsuit was filed.  Michael did not forward his mail to David's address,

and David only received "junk mail" addressed to Michael as a result of 

forwarding all mail from their father's address to his own home.  Although 

Michael had a cellular phone with a 425 area code and a Washington State 

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driver's license issued in November 2005, there was no evidence that either had 

any connection to David's Everett address.  Finally, there was no evidence 

Michael ever used David's address for any purpose such as employment, 

banking, billing, voter registration, or magazine subscriptions.  As a matter of 

law, Michael did not conduct sufficient domestic activity at David's address to 

render the house a place of usual abode.  See, e.g., Blankenship, 114 Wn. App. 

at 317 (defendant's father's house in Seattle was not place of usual abode 

where, before service was attempted, defendant had moved out of state, signed 

a lease, purchased a car, obtained employment and a new driver's license, and 

used her father's address only on her checking account); Streeter-Dybdahl v. 

Nguyet Huynh, 157 Wn. App. 408, 414, 236 P.3d 986 (2010) (service at 

defendant's former residence, which she no longer owned and where current 

resident, defendant's brother, kept mail for defendant in a special box, in the 

event she came by, was not proper based on lack of evidence house was center 

of domestic activity for defendant), review denied, 170 Wn.2d 1026 (2011); 

Vukich v. Anderson, 97 Wn. App. 684, 690, 985 P.2d 952 (1999) (despite 

evidence that resident received mail at and owned house where substitute 

service was attempted, specific evidence that another party was leasing his 

residence during the time of service and records indicating that he opened a 

bank account and purchased a house in another state demonstrated that house 

where service was attempted was not a usual place of abode). 

       In sum, contrary to the Cheesmans' arguments, the trial court's findings of 

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fact support its conclusions of law that (1) Michael and Sheree Rowse resided in 

Arkansas and maintained their domicile there at the time the lawsuit was filed,

(2) neither Michael nor Sheree ever maintained a domicile at the house on 24th 

Drive Southeast in Everett, (3) defendants Michael and Sheree were not 

properly served with the summons and complaint, and (4) the statute of 

limitations had expired as to the claims of all plaintiffs except the minor Allison 

Cheesman. 

       Finally, without citation to relevant authority, the Cheesmans claim the 

service here was sufficient to satisfy constitutional due process because Michael 

received actual notice of the lawsuit from his brother David, or from their sister, 

as a result of the attempted substitute service.  "But this general constitutional 

observation ignores specific statutory requirements for effecting service on an 

individual defendant in Washington."  Gerean v. Martin-Joven, 108 Wn. App. 

963, 971, 33 P.3d 427 (2001) (rejecting argument that defective substitute 

service is cured if summons is fortuitously delivered to defendant by person over 

age of 18 and not a party to the lawsuit), review denied, 146 Wn.2d 1013 (2002);

Blankenship, 114 Wn. App. at 318 (rejecting argument that defendant's father 

became equivalent of process server by mailing copy of summons and complaint 

to defendant and discussing matter with her and insurance agent).  Actual notice 

may be relevant to constitutional due process, but "such notice standing alone is 

insufficient to impart the statutory notice required to invoke the court's in 

personam jurisdiction."  Thayer v. Edmonds, 8 Wn. App. 36, 40, 503 P.2d 1110 

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(1972), review denied, 82 Wn.2d 1001 (1973). Based on this record, the 

Cheesmans failed to properly serve the Rowses before the statute of limitations 

expired, at least as to three plaintiffs, and the trial court properly dismissed the 

suit with prejudice as to those three plaintiffs and without prejudice as to the 

remaining plaintiff.

       Affirmed.

WE CONCUR:

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