          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CAPITAL ONE BANK (USA), N.A.,                                                    C, 1

                                                  DIVISION ONE
                 Respondent,
                                                                                    I
                                                  No. 72764-8-1
            v.
                                                  UNPUBLISHED OPINION
                                                                                3
DAVID L. KOPLITZ,
                                                                                Co      :
                 Appellant.                       FILED: March 2, 2015


          Dwyer, J. — After David Koplitz failed to respond to a summons and

complaint, a default judgment was entered against him. Koplitz moved to vacate

the defaultjudgment on the ground that he had not been properly served. His

motion was denied. Because we find no error in the trial court proceedings, we

affirm.

                                           I


          Capital One Bank issued a credit card account to Koplitz. Koplitz used the

credit card to make purchases. Eventually, he defaulted on the agreement by

failing to make payments on the account. As a result, he became indebted to

Capital One in the amount of $16,388.60.

          On June 8, 2011, Capital One attempted to serve Koplitz with a summons

and complaint. In a sworn declaration, the process server hired by Capital One

stated that the summons and complaint were left with Bruce Gingrich—
No. 72764-8-1/2



purportedly a co-resident of Koplitz.

       On the date and time of Jun 8 2011 10:47 AM at the address of
      5820 25th AVE SE LACEY, within the County of THURSTON, State
      of WASHINGTON, the declarant duly served the above described
      documents upon DAVID L KOPLITZ by then and there personally
      delivering 1 true and correct copy(ies) thereof, by then presenting
      to and leaving the same with Bruce Gingrich CO-RESIDENT, a
      brown-haired white male approx. 35-45 years of age, 6'0"-6'6" tall
       and weighing 160-180 lbs., a person of suitable age and discretion
       who stated they reside at the defendant's/respondent's usual place
       of abode listed above.

       On June 23, Koplitz mailed a letter to counsel for Capital One, in which he

indicated that the summons and complaint had been "found by my brother on the

ground at the front door at the place that he stays at." The mailing address

provided by Koplitz was 3959 Martin Way E, Olympia, Washington 98506.
       On October 11, Capital One filed suit against Koplitz in Thurston County

Superior Court.

       On November 3, Capital One moved for a defaultjudgment on the ground

that Koplitz had failed to properly file an answer within 20 days of service.
Capital One requested a hearing date of December 2 to address the motion for a

default judgment.

       On December 2, Capital One appeared in Thurston County Superior

Court, but Koplitz did not. Consequently, the trial court entered a default

judgment against Koplitz in the amount of $16,948.59.
       On October 3, 2012, Capital One obtained a writ of garnishment against

Koplitz's bank account. $11,562.34 was obtained in the garnishment.

       Thereafter, Koplitz opposed the garnishment and submitted documents in
No. 72764-8-1/3



support of his position. One of these documents was a signed statement from

Gingrich, in which he stated that Koplitz did not live with him but, rather, lived in a

nearby unit within the same building. This statement was not made under

penalty of perjury and was not notarized. In addition, it was signed and dated on

June 5, 2011—three days prior to the date upon which the process server had

served the summons and complaint upon Gingrich.

       Koplitz also included a utility bill from October 2012, which lists his

address as 5820 25th Ave SE, Lacey, Washington 98503—the same address at

which the process server served the summons and complaint.

       Capital One noted a motion for November 9, 2012 to resolve Koplitz's

claim of exemption from the garnishment of his bank account. Capital One sent

notice to Koplitz at 3959 Martin Way E, Olympia, Washington 98506—the

address provided by Koplitz in the letter that Capital One considered to be his

notice of appearance.

       At the November 9 hearing, Thurston County Superior Court Judge

Thomas McPhee interpreted Koplitz's pleadings as constituting a motion to

vacate the default judgment. Judge McPhee permitted Capital One to re-note

the hearing and instructed Capital One to send notice to Koplitz at 5820 25th Ave

SE, Lacey, Washington 98503.

       On November 30, Judge McPhee presided over a hearing on the motion

to vacate the default judgment. Judge McPhee reserved a ruling until a later

date and informed the parties that, because November 30 was his last day on the
No. 72764-8-1/4



bench, they would receive the ruling via mail.1

        Koplitz subsequently filed additional documentation in superior court. One

of these documents was a letter in which he stated that the address in Olympia

from which he had sent his notice of appearance was his work address. He also

alleged that Capital One had "purposely miss directed [sic] the information for

court date in an attempt to get a default judgment." However, the court date

referenced by Koplitz—November 16, 2012—was nearly a year after the default

judgment had been entered.

       On January 9, 2013, Koplitz submitted an undated and unsigned "Property

Rental Agreement" between Bruce Gingrich and "The Landlord," whose name

had been redacted from the document. The "Physical Address" listed in this

document was the following: 5809 25th Avenue SE, Lacey, Washington. Koplitz

again alleged that Capital One had attempted to obtain a default judgment by

means of improper service of process.

        On April 16, Judge McPhee issued an opinion denying Koplitz's motion to

vacate the default judgment. His opinion is recreated, in pertinent part, below.

               I have reviewed the entire file, including all recently filed
        materials. I conclude that all relief sought by [Koplitz] is not
        supported by either facts or the law and that all claimed relief must
        be denied.
                Denial of the motion to vacate the default judgment is
        required on both procedural and substantive grounds.
        Procedurally, [Koplitz] has not complied with CR 60(e)(3). As a
        matter of substantive law, I conclude that [Koplitz] received
        adequate notice of the hearing on plaintiff's motion for a default
        judgment. It was sent to the address supplied by defendant when

        1After a long and distinguished career, Judge McPhee was about to embark on a well-
earned period of retirement.
No. 72764-8-1/5



      he appeared by letter to contest plaintiff's complaint. Further, he
      fails to raise any defense to the complaint that rises to the level
      required by CR 60(e)(1) except the defense of lack of jurisdiction by
      reason of inadequate service of original process, a defense that
      can be raised at any time.
               In her brief filed November 28, [Capital One's counsel]
      correctly states the law relating to a contested declaration of
      service and persuasively argues defendant has failed to show facts
      that create a triable issue of fact. I agree that the purported
      statement of Mr. Gingrich is so rife with material inconsistencies
      that it cannot be judged credible. There is no basis here to
      conclude that [Capital One] failed to service [Koplitz] by valid
      substituted service or to conclude that [Koplitz] is now entitled to an
      evidentiary hearing on that issue.
              The remaining issue raised by [Koplitz] in his claims for relief
      is a claim that he is entitled to an exemption from the writ of
      garnishment. He has failed to show any valid exemption.
      [Koplitz's] claim that his judgment has been paid by the Federal
      Reinvestment and Recovery Act of 2008 is not supported by any
      evidence and appears nonsensical.

      Because Judge McPhee had retired, he directed Capital One's counsel to

prepare an order and consult with the presiding judge regarding the proper

procedure for entry of the proposed order.

      On April 26, the parties appeared before a different superior court judge

for presentation of the order. However, because the newly assigned judge

preferred to have Judge McPhee hear the matter on a "pro tern" basis, the

proposed order was not entered at that time.

      Subsequently, Koplitz filed another motion to vacate the default judgment

and submitted additional materials in a further belated attempt to show that

Gingrich did not reside at 5820 25th Ave SE, Lacey, Washington 98503.

      The parties then entered an agreed order permitting retired Judge

McPhee to preside over the hearing for the presentation of the order as a judge


                                        -5
No. 72764-8-1/6



pro tempore.2

         On August 9, Judge McPhee entered an order denying Koplitz's motion to

vacate the default judgment, as well as an order denying Koplitz's exemption

claim.


         Koplitz appeals.

                                                II


         Koplitz assigns error to the trial court's denial of his motion to vacate the

default judgment entered against him. Koplitz contends that service of process

was defective, which resulted in the entry of a void judgment, given that personal

jurisdiction over him was wanting. We disagree.

         "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." In re Marriage of Markowski. 50 Wn. App. 633, 635-36, 749

P.2d 754 (1988) (citing Mid-City Materials, Inc. v. Heater Beaters Custom

Fireplaces. 36 Wn. App. 480, 674 P.2d 1271 (1984)). Where the entity against

whom the judgment was entered was not the entity served, the judgment is void

due to lack of personal jurisdiction. See Painter v. Olnev. 37 Wn. App. 424, 427,

680 P.2d 1066 (1984). Trial courts have a nondiscretionary duty to grant relief

from default judgments that are entered by courts without personal jurisdiction.

Leen v. Demopolis. 62 Wn. App. 473, 478, 815 P.2d 269 (1991); Markowski. 50

Wn. App. at 635. Whether service of process was proper is a question of law

         2 RCW 2.08.180 authorizes a retired judge to hear a pending case as a judge pro
tempore, even absent a written agreement, if the judge "retires leaving a pending case in which
the judge has made discretionary rulings . ..." Thus, the parties' stipulation was unnecessary.
No. 72764-8-1/7



that we review de novo. Goettemoeller v. Twist, 161 Wn. App. 103, 107, 253

P.3d 405 (2011).

       However, "[a]n affidavit of service that is regular in form and substance is

presumptively correct." In re Dependency of A.G.. 93 Wn. App. 268, 277, 968

P.2d 424 (1998). Thus, the party challenging service bears the burden of proving

improper service by clear and convincing evidence. Allen v. Starr, 104 Wash.

246, 247, 176 P. 2 (1918); Vukich v. Anderson, 97 Wn. App. 684, 687, 985 P.2d

952 (1999) (quoting Woodruff v. Spence, 88 Wn. App. 565, 571, 945 P.2d 745

(1997)). Clear and convincing evidence exists "when the evidence shows the

ultimate fact at issue to be highly probable." In re Dependency of K.S.C., 137

Wn.2d 918, 925, 976 P.2d 113 (1999). On appellate review, to sustain a finding

in favor of the defendant-movant, there must be substantial evidence in the

record from which a rational trier of fact could have found the necessary facts by

clear and convincing evidence. See K.S.C., 137 Wn.2d at 925.

       Although the trial court does not have discretion in deciding whether to

vacate a default judgment once it has found that it lacks personal jurisdiction, in

determining a challenge based on improper service, the trial court must exercise

its fact finding responsibilities. See Edwards v. Morrison-Knudsen Co., 61 Wn.2d

593, 598, 379 P.2d 735 (1963) ("The function of ultimate fact finding is

exclusively vested in the trial court"). Because of this, we review issues offact
only for substantial evidence. See Dodd v. Polack, 63 Wn.2d 828, 829, 389 P.2d

289(1964).

       In the event that the facts are disputed and unclear, the trial court must

                                        -7-
No. 72764-8-1/8



enter the necessary factual findings to support its conclusion that the defendant

has failed to prove by clear and convincing evidence that he was not properly

served. Such findings, when they are supported by substantial evidence in the

record, enable the appellate court to review de novo the legal conclusion of

whether the defendant has shown by clear and convincing evidence that the trial

court lacked personal jurisdiction at the time the default judgment was entered.

       In this case, the trial court did indeed enter the necessary factual findings.

In concluding that Koplitz "received adequate notice of the hearing on [Capital

One's] motion for a default judgment," the court found that the summons "was

sent to the address supplied by [Koplitz] when he appeared by letter to contest

[Capital One's] complaint." Moreover, after finding that "the purported statement

of Mr. Gingrich," which was submitted on Koplitz's behalf, "is so rife with material

inconsistencies that it cannot be judged credible," the trial court reiterated, "There

is no basis here to conclude that [Capital One] failed to service defendant by

valid substituted service." In light of the trial court's conclusions, it may be

inferred that the trial court was similarly unpersuaded by Koplitz's own conflicting

accounts of the event in question.

       We have no difficulty concluding that these findings are supported by

substantial evidence in the record. Accordingly, our only remaining task is to

consider whether the trial court's legal conclusion—that Koplitz failed to show by

clear and convincing evidence that personal jurisdiction was wanting—was

erroneous. We conclude that it was not.

       The trial court's findings establish that the summons was served upon an

                                          -8-
No. 72764-8-1/9



adult living at Koplitz's usual place of abode. Because the trial court did not give

credence to Koplitz's version of events, and because RCW 4.28.080(15)3 permits

substitute service at the intended recipient's usual abode, the court did not err in

concluding that Koplitz failed to meet his evidentiary burden in seeking vacation

of the judgment. In the absence of clear and convincing evidence that personal

jurisdiction over Koplitz was wanting, the trial court properly denied his motion to

vacate the default judgment.4

       Affirmed.




We concur:




Sfl&^frv- CCT.




        3Service on a defendant may be accomplished either by serving the defendant
personally, "or by leaving a copy ofthe summons at the house of his or her usual abode with
some person of suitable age and discretion then residenttherein." RCW 4.28.080(15).
        4Koplitz's briefing is discursive. This much, however, is clear: the relief he seeks is
vacation of the default judgment. While he invokes a host of additional legal authority, he fails to
demonstrate that any of these sources offers a tenable basis for obtaining the relief he seeks.
