       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



DISCOVER BANK, ISSUER OF THE                      No. 69964-4-1
DISCOVER CARD,
                                                  DIVISION ONE
                                                                            CO
                          Respondent,                                            •"-"""Up:


               v.



BORIS PETRENKO and DOE I, and                     UNPUBLISHED
their marital community composed
thereof,                                          FILED: April 28, 2014

                          Appellants.



       COX, J. — Substituted service at a defendant's usual abode requires,

among other things, that the summons be served upon a person who is "then

resident therein."1 The supreme court has interpreted "resident" under RCW

4.28.080(15) to include a relative of the defendant who actually slept in the home

of the defendant the night prior to substituted service.2 Mere presence in the

defendant's home, however, is insufficient to satisfy the requirements of this

statute.3 It is unclear from this record whether Boris Petrenko has met his burden

to show by clear and convincing evidence that service was improper.

Accordingly, we remand for an evidentiary hearing on whether Lena Petrenko,

who was served by a process server, was "then resident" at the home of Boris at

the time of service.



       1 RCW 4.28.080(15).
       2 Salts v. Estes, 133 Wn.2d 160, 169, 943 P.2d 275 (1997).
       3 Id. at 169-70.
No. 69964-4-1/2



         Discover Bank brought this action against Boris Petrenko for monies owed

as a result of transactions on a credit card that it issued to him. According to a

declaration of service by Ken Vandyke, he served the summons and complaint

upon "Boris Petrenko and Doe 1" by personally delivering copies to "Jane Doe,

WHO REFUSED TO GIVE NAME, CO-RESIDENT," at Petrenko's usual abode

on January 7, 2012.4 The declaration further describes "Jane Doe" as "a brown-

haired white female approx. 55-65 years of age, 5'-5'4" tall and weighing 80-120

lbs."5

         Petrenko appeared pro se, filed an answer to the complaint, and reserved

the issue of whether there was proper service. Discover moved for summary

judgment. Petrenko failed to appear at the hearing, and the court granted

summary judgment to the bank on August 24, 2012.

         Three months later, Petrenko, now represented by counsel, moved,

pursuant to CR 60(b)(5) and (11), to vacate the judgment as void for improper

service. In support of his motion, Petrenko submitted a declaration from Lena

Petrenko that admits she was the Jane Doe that Vandyke served on January 7.

But she also declares that she is "not a resident at [Petrenko's house]" and

Tive[s] in Sammamish, Washington." She further declares that the process

server did not ask her name and that she never told him that she lived at

Petrenko's house.

         In denying Petrenko's motion, the trial court stated:




         4 Clerk's Papers at 49.
         5 Id.
No. 69964-4-1/3



       The term resident as used in this circumstances does not require
       any particular length of stay, nor does it require that it be the
       exclusive residence of the person.[6]

       Petrenko appeals.

                               CR 60(b)(5) MOTION

       Generally, we review a motion to vacate for an abuse of discretion, but

because courts have a mandatory, nondiscretionary duty to vacate void

judgments, we review de novo a trial court's decision to grant or deny a motion to

vacate for lack of jurisdiction.7 Thus, we reject Discover's argument that an

abuse of discretion standard of review controls.

       Petrenko contends that the trial court should have granted his motion to

vacate the default judgment because the court lacked personal jurisdiction due to

improper service. "Proper service of the summons and complaint is essential to

invoke personal jurisdiction over a party, and a default judgment entered without

proper jurisdiction is void.'"8 Thus, despite the general requirement that personal
jurisdiction be raised in the answer or in a motion prior to filing the answer, if a
judgment has been entered by default and the judgment is later shown to be void
for lack of personal jurisdiction, the court may vacate the judgment at any time

under CR 60(b)(5).9

       The ways in which a person may serve with a summons are set forth in

RCW 4.28.080. Generally, personal service is required, but substitute service is

permitted under certain circumstances. RCW 4.28.080 provides in pertinent part:

       6 Id at 89.
       7 Ahten v. Barnes, 158 Wn. App. 343, 350, 242 P.3d 35 (2010).
       8Allstate Ins. Co. v. Khani. 75 Wn. App. 317, 324, 877 P.2d 724 (1994) (quoting
In re Marriage of Markowski, 50 Wn. App. 633, 635-36, 749 P.2d 754 (1988)).
       9 ]d at 323-24.
                                           3
No. 69964-4-1/4


       Service made in the modes provided in this section is personal
       service. The summons shall be served by delivering a copy
       thereof, as follows:
       ***



       (15) In all other cases, to the defendant personally, or by leaving a
       copy of the summons at the house of his or her usual abode with
       some person of suitable age and discretion then resident
       therein.™

       Thus, in order to effectuate substitute service, Discover needed to (1)

leave a copy of the summons at Petrenko's house, (2) with some person of

suitable age and discretion, (3) then resident therein. The only element at issue

here is the third one.

       The term "resident" requires something more than being present in the

defendant's usual abode.11 As noted by our supreme court in Salts v Estes,

when the legislature required that service be on a person who is "then resident"

in the defendant's usual abode, it meant something more than fleeting

occupancy.12 The usual rule is that service on employees and others who do not

reside in the defendant's home does not comport with due process.13 In Salts,

the court held that service of process on a person who was temporarily in the

defendant's home to feed dogs and take in the mail was insufficient for substitute

service of process. In refusing to interpret the term "resident" so that "mere

presence in the defendant's home or 'possession' ofthe premises [would be]
sufficient to satisfy the statutory residency requirement,"14 the court explained,
       Under such a view, service on just about any person present at the
       defendant's home, regardless of the person's real connection with

       10 (Emphasis added.)
       11 Salts, 133 Wn.2d at 167-68.
       12 Salts v. Estes, 133Wn.2d 160, 168, 943 P.2d 275 (1997).
       13 Id
       14 Id. at 169-70.
No. 69964-4-1/5


       the defendant, will be proper. A housekeeper, a baby-sitter, a
       repair person or a visitor at the defendant's home could be served.
       Such a relaxed approach toward service of process renders the
       words of the statute a nullity and does not comport with the
       principles of due process that underlie service of process
       statutes. t15i

       But in reaching the conclusion that it did in Salts, the supreme court

distinguished its earlier case ofWichertv. Cardwell.16 There, the court held that

service upon an adult child staying overnight at her parents' home was sufficient

service upon the defendant parents.17 The Salts court distinguished Wichert, in

part because the daughter on whom service was made in that case slept in the

defendants' home on occasion and in particular the night before she accepted

service.18

       Here, Discover has made a prima facie case that service was proper. The

burden then shifted to Petrenko to show by clear and convincing evidence that

service was improper. This record does not clearly show he has done so. A

person sharing his last name identifies herself as the "Jane Doe" with whom the

process server left copies of the summons and complaint. There is a dispute

whether she was "then resident" in the home of Boris Petrenko. Her mere denial

that she was not a resident, given the declaration that she was, is insufficient to

show by clear and convincing evidence that service was improper. Only an

evidentiary hearing, involving both Vandyke and Lena Petrenko, may resolve this

dispute.




       15 Id (emphasis added).
       16 Wichert v. Cardwell. 117 Wn.2d 148, 812 P.2d 858 (1991).
       17 Id at 152.
       18 Salts, 133Wn.2dat169.
No. 69964-4-1/6


       Citing Sheldon v Fettiq,19 Discover argues that Washington only requires

substantial compliance with the substituted service requirements. The bank is

mistaken. In Sheldon, copies of the summons and complaint were left with the

defendant's brother at her parents' residence. The court in Sheldon concluded

that the defendant maintained two places of usual abode, one at her family home

in Seattle and one at her apartment in Chicago, and that her family home was the

place where she was most likely to receive notice of an impending suit. Sheldon

is distinguishable from the present case. Like Salts, but unlike Sheldon, the

issue here is not where the residence is, but rather who resides there for

purposes of substituted service. As we already discussed, a fact dispute exists

between these parties. Because of this dispute, we remand to the trial court to

hold an evidentiary hearing to determine whether Lara Petrenko was "resident

therein" at the time of service.

                        CR 60(e) PRIMA FACIE DEFENSE

       Discover contends that under CR 60(e), Petrenko must demonstrate a

prima facie defense against its claims in order to vacate a judgment. This is

incorrect. As this court noted in Mid-City Materials, Inc. v. Heater Beaters

Custom Fireplaces,20 the customary meritorious requirement of CR 60 is

immaterial when a court entering judgment has no jurisdiction over the

defendants in the first instance. Similarly here, the challenge to the judgment is

based upon lack of personal jurisdiction. Therefore, Petrenko need not establish

       19 Sheldon v. Fettig, 129 Wn.2d 602, 919 P.2d 1209 (1996).
       20 See, Mid-Citv Materials, Inc. v. Heater Beaters Custom Fireplaces, 36 Wn.
App. 480, 486, 674 P.2d 1271 (1984) (Customary meritorious defense requirement of
CR 60 is immaterial when court entering judgment has no jurisdiction over the
defendants.).
No. 69964-4-1/7



a meritorious claim.

       The parties reference CR 60(b)(11) below but do not argue it on appeal.

Therefore, we do not address it.

                                   ATTORNEY FEES


       Both sides request an award of fees on the basis of the contract between

them. Because an award of fees is premature, we deny an award of fees at this

time. This is without prejudice to the trial court determining who the prevailing

party is at the time of resolving the service dispute and awarding fees, both for

trial and appeal, to such party.

       We vacate the order denying the motion and remand for further

proceedings that are consistent with this opinion.
                                                        CcnT.

WE CONCUR:




 W<4ftM~ Cy0.
