       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

EGP INVESTMENTS, LLC, a
Washington limited liability company,            No. 69535-5-


                    Appellant,                   DIVISION ONE




ERIC A. ANDREWS, Personal
Representative of the Estate of                  UNPUBLISHED OPINION
JENNIFER LUND,
                                                 FILED: October 28, 2013
                     Respondent.



       Becker, J. — Collections company EGP Investments LLC appeals the

order dismissing its lawsuit against a deceased debtor's estate for insufficient

service of process. Under a Washington statute, service is effective if the

summons and complaint are left at the defendant's residence with a person of

suitable age and discretion who resides there. Here, the record shows that EGP

Investments left the summons and complaint with someone who did not reside at

the defendant's home and was merely doing yard work at the adjacent property.

Because the defendant was not properly served, we affirm the order of dismissal.


                                        FACTS


       Before her death, Jennifer Lund had a revolving charge account with

Chase Bank USA, N.A. EGP Investments purchased the charge account after it
No. 69535-5-1/2



went into default. Lund died on April 7, 2011. Her husband, Eric Andrews, was

appointed personal representative of her estate. On February 6, 2012, EGP

Investments filed a creditor's claim, asserting Lund owed more than $25,000,

plus interest and attorney fees, on the account. Andrews rejected the claim as

untimely.

       On March 22, 2012, EGP Investments filed suit against Andrews as

personal representative of Lund's estate for wrongful rejection of the creditor's

claim. Under RCW 4.16.170, the company had 90 days from the date of filing to

properly serve Andrews. In his declaration of service, process server Mario

Robledo stated he served Andrews on May 30, 2012, by leaving the summons

and complaint at Andrews' residence in Gold Bar, Washington, with a "John Doe,

co-resident, being a person of suitable age and discretion, who is a resident

therein." Robledo described the person as a white man in his twenties with black

hair, who is 5 feet 11 inches tall and 150 pounds. His declaration did not say that

the John Doe claimed he was a resident. Nor did it provide any other basis for

the assertion that John Doe was a "resident therein."

       On July 12, 2012, after the 90-day period for service expired, Andrews

filed a motion to dismiss EGP Investments' lawsuit for improper service.

Andrews asserted he had not been personally served and lived only with his girl

friend. He argued EGP Investments failed to effect service because the

summons and complaint had been left with Brad Domhoff, an acquaintance who

was working as a landscaper on the property next door and did not reside with
No. 69535-5-1/3



Andrews. Andrews' declaration said Domhoff eventually gave him the complaint,

but Andrews did not state the date when this occurred or otherwise indicate that

it occurred within the 90-day period. Andrews submitted a declaration from

Domhoff, who said he had never lived with Andrews or claimed to, but had

accepted the papers from the process server.

       EGP Investments filed a response opposing dismissal, supported by

declarations. Laura Meas, Robledo's manager, stated that Domhoff had told a

process server that he lived with Andrews. Howard Andreasen, another process

server, stated he had been informed by Domhoffs former roommates that

Domhoff had moved out of the Monroe address he had given as his residence.

EGP Investments did not file declarations from the process server Meas referred

to or from the individuals Andreasen interviewed. Thus, the statements reported

in their declarations were hearsay.

      Andrews filed a motion to strike the hearsay statements in the declarations

by Meas and Andreasen. Andrews also submitted a supplemental declaration

from Domhoff and from Domhoffs former roommate.

       On July 20, 2012, the trial court considered the evidence, granted

Andrews' motion to dismiss for failure to timely serve, and granted in part his

motion to strike. EGP Investments claims its attorney requested that the court

hold an evidentiary hearing, but no such request is documented in the record.

There is no report of the hearing.

       On August 1, 2012, EGP Investments filed a motion for reconsideration
No. 69535-5-1/4



under CR 59. In support of this motion, the company submitted new declarations

from process server Robledo and from Andreasen, among other evidence.

Andrews filed a motion to strike the company's newly submitted evidence as

containing hearsay and lacking foundation, including the alleged criminal

histories of Domhoff and his former roommate. The trial court denied EGP

Investments' motion for reconsideration and granted Andrews' motion to strike

statements from the newly submitted declarations. This appeal followed.


                                  DISCUSSION

      EGP Investments challenges the order dismissing the complaint, the order

denying the motion for reconsideration, and the orders striking evidence.

      Proper service of the summons and complaint is a prerequisite to the trial

court obtaining personal jurisdiction over a party. Streeter-Dvbdahl v. Huvnh,

157 Wn. App. 408, 412, 236 P.3d 986 (2010), review denied. 170 Wn.2d 1026

(2011). Whether service of process was proper is a question of law this court

reviews de novo. Streeter-Dvbdahl. 157 Wn. App. at 412.

      The plaintiff has the initial burden of proof to establish a prima facie case

of sufficient service. Streeter-Dvbdahl. 157 Wn. App. at 412. An affidavit of

service that is regular in form and substance is presumptively correct. Lee v. W.

Processing Co.. 35 Wn. App. 466, 469, 667 P.2d 638 (1983). The burden then

shifts to the person challenging service to show by clear and convincing evidence

that service was improper. Leen v. Demopolis. 62 Wn. App. 473, 478, 815 P.2d

269 (1991), review denied. 118 Wn.2d 1022 (1992). But see Farmer v. Davis.
No. 69535-5-1/5



161 Wn. App. 420, 428-30, 250 P.3d 138 (refusing to apply heightened burden of

proof to defendant where no judgment was being attacked), review denied. 172

Wn.2d 1019 (2011).

      The statutory requirements for service provide that "summons shall be

served by delivering a copy thereof... 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." RCW 4.28.080(15).

       Here, there is no claim that Andrews was served by delivery of the

summons and complaint to him personally. EGP Investments offered the

process server's declaration that he served a co-resident. This was prima facie

proof of sufficient service. Itwas rebutted by proof that the person served, Brad

Domhoff, did not live with Andrews. EGP Investments then submitted statements

in an attempt to cast doubt on the credibility of Domhoffs assertion that he did

not live with Andrews. The statements are unavailing, not only because they are

hearsay but also because they fail to show that Domhoff ever resided with

Andrews. Notably, there is no testimony by Robledo explaining why, in his

original declaration of service, he referred to "John Doe" as a "co-resident." On

this record, Andrews met his burden to show he was not properly served.

       EGP Investments contends the trial court erred by failing to hold an

evidentiary hearing to resolve issues of fact that turned on the credibility of the

witnesses. The company asserts that its attorney orally requested such a

hearing. There is no record that EGP Investments asked for an evidentiary
No. 69535-5-1/6



hearing, so the issue was not preserved for review.

       EGP Investments has asked this court to take additional evidence on the

topic of whether its attorney requested an evidentiary hearing. The evidence

consists of two declarations. The company's attorney states, "To the best of my

recollection, I requested an evidentiary hearing." The company's manager states

that although he was not present, he had instructed the attorney to request an

evidentiary hearing and it was his "understanding" the attorney did so but was

denied. These two declarations do not meet the six criteria of RAP 9.11 for


taking additional evidence on appeal. We deny the motion.

      There was no need for the trial court to hold an evidentiary hearing even if

one had been requested. Much of EGP Investments' evidence was inadmissible

hearsay. None of it proved that Domhoff resided with Andrews. Therefore, there

were no factual issues that an evidentiary hearing would have helped to resolve.

       EGP Investments argues the trial court erred when it struck portions of the

declaration of Laura Meas, the process server manager. Meas declared that her

process server asked the man to whom the papers were given if he was a

resident at the address, and the man said yes. This statement was properly

stricken as hearsay. Meas was not the process server who attempted to serve

Andrews. She had no firsthand knowledge of what was said by the man who

received the papers.

       EGP Investments moved for reconsideration on four grounds. First, the

company asserts that the trial court's decision to strike portions of Meas'


                                            6
No. 69535-5-1/7



declaration and its failure to hold an evidentiary hearing were irregularities that

justify setting aside the dismissal. Neither constitutes an irregularity in the

proceedings as contemplated by CR 59(a)(1).

       Second, EGP Investments alleges reconsideration was warranted under

CR 59(a)(2) due to misconduct of the prevailing party. The purported misconduct

is primarily based on the company's allegation that Domhoff and his roommate

have past convictions for theft. But EGP Investments has provided no evidence

of misconduct by Andrews, the prevailing party.

       Third, EGP Investments argues the trial court should have granted

reconsideration on the ground of newly discovered evidence, CR 59(a)(4). The

company fails to show that any of its additional evidence is material, could not

have been discovered with reasonable diligence and produced at the hearing, or

would change the result. See Go2Net. Inc. v. CI Host. Inc.. 115 Wn. App. 73, 88-

89, 60 P.3d 1245 (2003).

       Finally, the company argues that substantial justice was not done. See

CR 59(a)(9). There is no basis for such a conclusion.

       When the trier of fact has weighed the evidence and determined whether it

meets the applicable standard, our review is limited to determining whether

substantial evidence supports the facts as found. See Bland v. Mentor. 63

Wn.2d 150, 154, 385 P.2d 727 (1963). Based on the record before us, we

conclude the evidence supported the trial court's ruling that EGP Investments

failed to serve Andrews. The trial court correctly dismissed EGP Investments'
No. 69535-5-1/8



suit for lack of personal jurisdiction over Andrews.

       Andrews requests an award of attorney fees on appeal pursuant to RCW

11.96A.150 and RAP 18.1(a). We exercise our discretion to award Andrews fees

on appeal against EGP Investments, upon proper application. See In re Estate

of Fitzgerald, 172 Wn. App. 437, 453-54, 294 P.3d 720 (2012) (awarding attorney

fees to estate where it was forced to defend against creditor's meritless claims),

review denied. 177Wn.2d 1014(2013).

       Affirmed.




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WE CONCUR:




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