Balcom v. Bland

• Decision Date: 21 June 2018
• Docket Number: 35275-7-III
• Citation: 4 Wn.App.2d 1027
• Court: Washington Court of Appeals
• Parties: CANDEA BALCOM, a single woman, AKA CANDEA SMARTLOWIT, Appellant, v. TAMARA BLAND, a married woman, and J.H. HUSCROFT, Ltd., a Canadian Corporation, Respondents.

4 Wn.App.2d 1027

CANDEA BALCOM, a single woman, AKA CANDEA SMARTLOWIT, Appellant, v. TAMARA BLAND, a married woman, and J.H. HUSCROFT, Ltd., a Canadian Corporation, Respondents.

No. 35275-7-III

Court of Appeals of Washington, Division 3

June 21, 2018

UNPUBLISHED OPINION

FEARING, J.

We affirm summary dismissal of Candea Balcom's suit because of lack of service of process on defendants Tamara Bland and J.H. Huscroft, Ltd. We agree with the trial court that Balcom failed to properly serve both defendants because she failed to satisfy conditions necessary for service by publication her only mode of service.

FACTS

On September 26, 2012, plaintiff Candea Balcom traveled southbound on Highway 20 in Pend Oreille County. Balcom encountered defendant Tamara Bland's vehicle blocking the lane, and, unable to timely stop, Balcom struck Bland's car. Balcom lives in Pend Oreille County, while Bland resides in British Columbia. According to Candea Balcom, at the time of the accident, Bland drove a corporate automobile for defendant J.H. Huscroft, Ltd., a British Columbia softwood products manufacturer.

On September 24, 2015, two days shy of three years after the automobile collision, Candea Balcom filed a summons and complaint against Tamara Bland and J.H. Huscroft. Balcom then filed a motion for service by publication pursuant to RCW 4.28.100 and . 110. Balcom's counsel annexed a declaration to the motion, which declaration read in portion:

2. Service of the summons in this matter is justified and necessary because the defendant Bland has departed this state it is believed to avoid service in this matter, and is probably in Canada.

3. It is unknown if Ms. Bland will ever come back to the United States, and service needs to be completed before the statute of limitations runs in this matter. Accordingly, in order to perfect service on defendant Bland, service by publication is necessary.

4. I also performed many searches in an attempt to find someone to serve on behalf of defendant Huscroft within the state of Washington. I searched all business licenses in this state, the Secretary of State's databases including corporate offices, officers, and registered agents, this state's Department of Revenue databases, the Washington State Patrol databases, and United States and Washington's Departments of Transportation databases. All searches were negative in my attempt to find a qualified person or corporate representative within this state to serve in this matter. Accordingly, in order to perfect service on defendant Huscroft, service by publication is necessary.

5. I will forward a copy of the complaint and summons to defendants' [sic] and/or their representatives in an attempt to resolve this matter short of trial.

Clerk's Papers (CP) at 25. The trial court then signed an order authorizing service of the summons by publication.

Candea Balcom published the summons in the Newport Miner weekly from September 30, 2015, to November 4, 2015. Balcom's counsel also mailed a copy of the summons and complaint to Tamara Bland and J.H. Huscroft and to an insurance agent he believed assisted in the defense of Bland and Huscroft.

PROCEDURE

On April 3, 2017, Tamara Bland and J.H. Huscroft filed a motion to dismiss for lack of jurisdiction based on improper service. The trial court determined service by publication to be invalid. Because of the expiration of the statute of limitations, the trial court dismissed with prejudice Candea Balcom's claims.

LAW AND ANALYSIS

Service of Process - Tamara Bland

Candea Balcom appeals the dismissal of her lawsuit. She contends she effected service of process over Tamara Bland and J.H Huscroft when publishing notice in a county official newspaper. Balcom claims that CR 5, RCW 4.28.100, and the trial court's order authorizing publication sanctioned her service by publication. We disagree and affirm the trial court.

Our analysis distinguishes between service on defendant Tamara Bland and defendant J.H. Huscroft. We assess service of process on Bland first and affirm dismissal of the suit against Bland on three grounds. First, Candea Balcom does not establish she exerted reasonable efforts to personally serve Bland with the summons and complaint. Second, Bland cannot rely on RCW 4.28.100 when serving a nonresident natural person. Third, Bland presents no underlying facts to establish that Bland sought to avoid service.

Before addressing the merits of the appeal, we review two technical contentions of Candea Balcom, under which she entreats us not to review the trial court's dismissal of the suit but to remand for further proceedings. First, Balcom asserts that Bland captioned her pleading to dismiss as a motion under CR 12(i), which concerns nonparties at fault. Balcom accurately notes that Bland's motion raised service of process, not nonparties. We decline to entertain Balcom's criticism however, because her brief fails to cite to the page number in the clerk's papers where Bland purportedly forwarded the wrong rule. This court will not address alleged errors in the trial court record when the appellant fails to identify the location of the error in the record. The appellant must reference the record for each factual statement. RAP 10.3(a)(5).

Second Candea Balcom complains that the trial court considered, at the time of the dismissal hearing, new materials impermissibly proffered by Tamara Bland. Nevertheless, Balcom does not supply this court with a report of proceedings and does not cite in the trial court record any purported procedural irregularities. Matters not in the record will not be considered by an appellate court. State ex rel. Dean v. Dean, 56 Wn.App. 377, 382, 783 P.2d 1099 (1989).

We move to the merits of whether Candea Balcom validly served Tamara Bland by publication. Jurisdiction demands service of process. Parkash v. Perry, 40 Wn.App. 849, 853, 700 P.2d 1201 (1985). A court cannot adjudicate a personal claim or obligation without personal jurisdiction over that party. In re Marriage of Powell, 84 Wn.App. 432, 437, 927 P.2d 1154 (1996). Personal jurisdiction over a defendant commands proper service of process. Habermanv. Washington Public Power Supply System, 109 Wn.2d 107, 177, 744 P.2d 1032, 750 P.2d 254 (1987).

Both parties agree that Tamara Bland resided in British Columbia at all times. A Washington court may assert personal jurisdiction over a nonresident defendant if the plaintiff satisfies Washington's long-arm statute and if the assumption of jurisdiction meets the requirements of due process by comporting with traditional notions of fair play and substantial justice. Ralph's Concrete Pumping Inc. v. Concord Concrete Pumps, Inc., 154 Wn.App. 581 584-85, 225 P.3d 1035, review granted, 169 Wn.2d 1029, 241 P.3d 786 (2010).

RCW 4.28.185, Washington's longarm statute, grants jurisdiction to Washington courts of residents of another state or nation under certain circumstances. The statute reads, in relevant part:

(1) Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts in this section enumerated, thereby submits said person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:

(a) The transaction of any business within this state;

(b) The commission of a tortious act within this state;

(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in this section, may be made by personally serving the defendant outside this state, as provided in RCW 4.28.180, with the same force and effect as though personally served within this state.

The first sentence of RCW 4.28.180 declares:

Personal service of summons or other process may be made upon any party outside the state.

Based on RCW 4.28.180 and .185, Candea Balcom could have personally served Tamara Bland in British Columbia. We assume the collision report identified the residential address of Bland particularly since Balcom claims she mailed a copy of the summons and complaint to Bland. Still, Balcom chose not to perform personal service.

Candea Balcom first relies on CR 5 to authorize her service of the summons and complaint by publication. CR 5 helps her none. CR 5 only covers service of pleadings "subsequent to the original complaint." CR 5(a). No language in the rule addresses service of the summons by publication.

Candea Balcom next forwards RCW 4.28.100 as authorizing her service by publication. RCW 4.28.100 governs service of a summons by publication, and reads, in pertinent part:

When the defendant cannot be found within the state, and upon the filing of an affidavit of the plaintiff, his or her agent, or attorney, with the clerk of the court, stating that he or she believes that the defendant is not a resident of the state, or cannot be found therein, and that he or she has deposited a copy of the summons (substantially in the form prescribed in RCW 4.28.110) and complaint in the post office directed to the defendant at his or her place of residence, unless it is stated in the affidavit that such residence is not known to the affiant, and stating the existence of one of the cases hereinafter specified, the service may be made by publication of the summons, by the plaintiff or his or her attorney in any of the following cases:

(1) When the defendant is a foreign corporation, and has property within the state;

(2) When the defendant, being a resident of this state, has departed therefrom with intent to defraud his or her creditors, or to avoid the service of a summons, or keeps himself or herself concealed therein with like intent;

(3) When the defendant is not a

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