                                                                  FILED
                                                               March 17, 2016
                                                        In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division Ill




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

VICKI POSA,                                   )         No. 32910-1-111
                                              )
                     Appellant,               )
                                              )
              v.                              )         UNPUBLISHED OPINION
                                              )
JOHN AND LINDA ROBEL, AND THE                 )
MARITAL COMMUNITY COMPRISED                   )
THEREOF, DOING BUSINESS AS                    )
ROBEL'S ORCHARD AND JOHN                      )
DOES 1-4, AND CORPORATION ABC,                )
                                              )
                     Respondents.             )

       PENNELL, J. -Vicki Posa appeals from an order dismissing her personal injury

claim against John and Linda Robel based on improper service of process. Because Ms.

Posa's affidavits in support of service by mail were sufficient to allow substitute service,

we reverse the order of dismissal and the related award of attorney fees and remand this

case to the superior court for further proceedings.

                                          FACTS

       On July 20, 2010, Ms. Posa went to Robel's Orchard, owned and operated by the

Robels, to pick cherries. While there, she somehow fell off a ladder and sustained
No. 32910-1-111
Posa v. Robel


multiple injuries. 1 On July 18, 2013, Ms. Posa filed a complaint seeking compensation

for her injuries in Spokane County Superior Court.

       On October 16, 2013, Ms. Posa filed a motion for service by mail with the superior

court. The materials in support of the motion included affidavits from Ms. Posa's counsel

and a process server. Counsel's affidavit contained the following assertions: (1) counsel

attempted personal service four times at the Robels' home address, (2) the Robels knew

about the lawsuit as they had communicated with their insurance company about it, (3)

the Robe ls were purposefully avoiding service of process, (4) after the first attempt at

service, the Robels posted a sign indicating they intended to shoot any intruders, (5) on

one attempt, despite seeing many cars parked outside the Robe ls' house, no one answered

the door when the process server knocked several times over the course of two hours, and

(6) service by mail would accomplish service of process. The process server's affidavit

contained the following assertions: (1) he attempted service twice, (2) on October 12,

2013, he saw many cars outside and believed someone was home yet no one answered the

door over the course of a two-hour span, (3) a neighbor confirmed Mr. Robel lived at the

address, (4) the following day when he attempted to serve the Robels, a "no trespass" sign



       1
        While the parties dispute exactly how the accident happened, those facts are
immaterial to this appeal.

                                              2
No. 32910-1-III
Posa v. Robel


was posted along with a sign indicating all intruders would be "shot," 2 (5) a man who

appeared to be Mr. Robel drove up the driveway toward the house yet, despite being close

enough to see and hear the process server ask him his identity and ask to talk to him, the

driver turned around and drove away, (6) the process server left the summons and

complaint taped to the Robels' door, and (7) he believed Mr. Robel was attempting to

avoid service.

       The superior court commissioner granted Ms. Posa's motion for service by mail.

The commissioner's order stated Ms. Posa appeared to have "made numerous attempts to

serve the [Robe ls] in person" and it appeared the Robe ls were "purposefully avoiding

service of process." CP at 10.

      After filing a notice of appearance, the Robels moved for summary judgment. The

Robels argued that service was improper because Ms. Posa's affidavits supporting service

by mail were insufficient. 3 The superior court ultimately granted the Robels' motion,

dismissed the case, and awarded the Robels attorney fees and costs.




      2
          Clerk's Papers (CP) at 23.
      3
         The Robels also moved for summary judgment on the basis Ms. Posa could not
maintain a negligence claim'. However, they later withdrew that argument.

                                             3
No. 32910-1-111
Posa v. Robel


                                         ANALYSIS

       Washington law favors personal service. Service by other means, i.e., constructive

or substitute service, "is in derogation of the common law and cannot be used when

personal service is possible." Rodriguez v. James-Jackson, 127 Wn. App. 139, 143, 111

P.3d 271 (2005). In order to utilize substitute service by mail, a plaintiff must seek

authorization from the trial court. CR 4( d)( 4 ). This entails filing an affidavit establishing

the following factual elements: (1) after a diligent search, the defendant could not be

found in Washington, (2) the defendant is a resident of Washington, and (3) the defendant

either left the state or concealed himself within it, with the intent to defraud creditors or

avoid service of process. Pascua v. Heil, 126 Wn. App. 520, 526, 108 P.3d 1253 (2005). 4

       In a prejudgment proceeding challenging the sufficiency of a motion for substitute

service, our review is limited to the adequacy of the plaintiffs original application for

substitute service. Brennan v. Hurt, 59 Wn. App. 315, 318, 796 P.2d 786 (1990). The

task is similar to the review of a search warrant: what matters is not what actually

happened but rather what information was in front of the commissioner at the time of




       4
          The Robels' suggestion that a plaintiff must also attempt service by publication
prior to service is not supported by any legal authority and, therefore, will not be
addressed. West v. Thurston County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012).

                                               4
No. 32910-1-111
Posa v. Robel


authorization. Pascua, 126 Wn. App. at 527. 5 While a conclusory recitation of the

required elements is not sufficient, a plaintiff need not ultimately prove the veracity of

claims made in an affidavit. Boes v. Bisiar, 122 Wn. App. 569, 577, 94 P.3d 975 (2004).

       Here, the parties dispute whether Ms. Posa's affidavits satisfied the first and third

prerequisites for service by mail: a diligent search and facts suggesting intent to defraud.

The record readily supports diligence. This is not a case where Ms. Posa's supporting

affidavits were purely conclusory. The affidavits explained two of the four attempts at

service in detail. 6 Nor is this a case where Ms. Posa failed to pursue reasonable leads to

locate the Robels' residence. To the contrary, it is undisputed that Ms. Posa's counsel

and process server accurately located the Robels' home. The only real dispute is whether,

based on the contents of the affidavits, it was reasonable for Ms. Posa to cease her

attempts at personal service, based on a reasonable inference that the Robels willfully

intended to avoid service. We conclude that it was.



       5
          For this reason, we do not consider the Robels' factual submissions, asserting
that they did not intend to evade service. Boes v. Bisiar, 122 Wn. App. 569, 578-79, 94
P.3d 975 (2004).
       6
         After the commissioner's order authorizing service by mail was entered, Ms.
Posa's counsel filed an affidavit of nonservice, detailing the two additional attempts at
service. Because these details were not in front of the commissioner at the time of the
order authorizing service by mail, they will not be considered. Pascua, 126 Wn. App. at
528.

                                              5
No. 32910-1-III
Posa v. Robel


       While the fact that a defendant does not come to the door or is aware he is named

in a lawsuit does not necessarily mean he is trying to conceal himself, Ms. Posa's

affidavits contain other facts that, when looked at in combination with these two things,

are sufficient to infer the Robels intended to avoid service. See Weiss v. Glemp, 127

Wn.2d 726, 734, 903 P.2d 455 (1995); In re Marriage ofLogg, 74 Wn. App. 781, 784,

875 P.2d 647 (1994). Concealment involves a "[w]illful evasion of process." Brown v.

ProWest Transp. Ltd., 76 Wn. App. 412, 421, 886 P.2d 223 (1994) (defining concealment

under the terms ofRCW 4.16.180, which tolls the statute of limitations due to the

concealment of the defendant). The Robels had notice of this lawsuit as they had

communicated with their insurance company about it. On the first visit to the Robe ls'

home, the process server believed someone was in the house despite no one answering the

door. On the following visit, a "no trespass" sign was posted along with a sign indicating

all intruders would be "shot." CP at 23. The process server saw a man he believed to be

Mr. Robel, based on a neighbor's description, drive up to the house; the man turned

around and drove away after the process server tried to talk to him. Posting a no

trespassing sign and driving away from the process server in light of the knowledge of a

pending lawsuit allows one to infer an intent to avoid service.




                                             6
No. 32910-1-111
Posa v. Robel


       Because service by mail was sufficient and service was commenced within the 90

day timeframe provided for by RCW 4.16.170, the superior court's dismissal of Ms.

Posa's lawsuit was in error. The court's award of attorney fees against Ms. Posa was

likewise in error. The superior court's order of dismissal and award of attorney fees are

therefore reversed. This matter is remanded to the superior court for further proceedings.

      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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Siddoway, CJ.                 U




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