Davis v. Opacki

• Decision Date: 25 September 2012
• Docket Number: No. 41087-7-II,41087-7-II
• Parties: SCOTT DAVIS and EVE EVES, Respondents, v. PAUL and JANE DOE OPACKI, Petitioners,
• Court: Washington Court of Appeals

SCOTT DAVIS and EVE EVES, Respondents, v. PAUL and JANE DOE OPACKI, Petitioners,

No. 41087-7-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

Dated: September 25, 2012

UNPUBLISHED OPINION

Penoyar, J. — Michigan residents Paul and Jennifer Opacki appeal the trial court's exercise of jurisdiction over them. In 2009, Scott Davis and Eve Eves brought a lawsuit in Jefferson County Superior Court against the Opackis, alleging multiple causes of action arising from an eBay transaction between the two parties.

The trial court dismissed the case without prejudice for Davis and Eves's failure to file an affidavit in compliance with RCW 4.28.185(4).¹ Davis and Eves then moved for reconsideration, attaching their affidavit to their motion; the trial court reversed its dismissal. We granted discretionary review. The Opackis argue that the trial court erred by allowing Davis and Eves to file the affidavit after it had dismissed their case. The Opackis argue, in the alternative, that the trial court erred by exercising long-arm jurisdiction over them. Because the trial court (1) had jurisdiction to accept the affidavit Davis and Eves filed and (2) properly exercised long-arm jurisdiction over the Opackis, we affirm.

FACTS

On May 6, 2009, the Opackis were served with Davis and Eve's summons and complaint,which alleged several claims, including breach of contract, violation of the Automobile Dealers Unfair Practices Act,² violation of the Consumer Protection Act,³ breach of the implied warranty of merchantability, fraud, and negligent misrepresentation. According to the complaint, Davis and Eves entered into a purchase and sale transaction with Paul Opacki for an Airstream Classic travel trailer on eBay. Allegedly, Davis and Eves paid Opacki⁴ through a bank wire transfer, received shipment of the trailer, and then noticed that the trailer was unusable due to damage from water leakage. The complaint alleged that Opacki "is engaged in interstate commerce and sells goods nationwide to the public via the website ebay.com." Clerk's Papers (CP) at 2.

On July 20, Davis and Eves filed their complaint in Jefferson County Superior Court. On July 27, Davis and Eves moved for entry of default on the basis that the Opackis had not answered or filed a responsive pleading within 60 days of being served with the summons and complaint. The trial court entered a default judgment against the Opackis.

Davis and Eves then sought enforcement of the judgment in Michigan. On March 11, 2010, the Opackis filed a motion, under CR 60(b)(5),⁵ to vacate the default judgment for lack of jurisdiction. The Opackis argued that Davis and Eves had failed to establish that the Opackis were subject to RCW 4.28.185, the "Washington Long Arm Statute." CP at 76.

The trial court found that Davis and Eves had

failed to establish by declaration valid service of process on an out of state resident cannot be made upon Defendant within the State. The long-arm statute, RCW[] 4.28.185, provides that when personal jurisdiction is predicated upon the long-arm statute, service of process outside the state shall be valid only when an affidavit (or declaration) is made and filed to the effect that service cannot be made within the state.

CP at 170. Accordingly, the trial court (1) vacated the default judgment for lack of personal jurisdiction and (2) dismissed the case without prejudice. The Opackis requested attorney fees but the trial court denied their request.

Davis and Eves moved for reconsideration under CR 59, attached the RCW 4.28.185(4) affidavit to their motion, and requested that the court vacate the portion of its order that had dismissed the case. The affidavit states, "Plaintiffs were unable to serve the Defendants in Washington because the Defendants are residents of Hudsonville, Michigan, and do business with Washington state residents via the eBay auction website." CP at 184.

The trial court concluded that "now that Plaintiffs have filed the affidavit as required by RCW 4.28.185(4) the service is valid. Thus the Court erred in dismissing the cause of action," granted Davis and Eves's motion for reconsideration, and again denied the Opackis' motion for attorney fees. CP at 201.

The Opackis moved for reconsideration of the trial court's order. The trial court denied the Opackis' motion. The trial court reasoned, in part:

Plaintiffs could have received a one or two week continuance of the April 16, 2010 hearing in order to file the affidavit and prepare to argue the new issue. The entire issue was not raised in defendants' original motion but only in defendants' reply to plaintiffs' response, only a day before the hearing. Had the defendants raised this issue in the original motion, the affidavit most assuredly would have been filed prior to any hearing on the motion. It certainly would not promote any interest to punish the plaintiffs for not seeking a continuance to respond to this new issue notraised by defendants until a day before the hearing, which would have necessarily increased litigation expenses for all parties.

CP at 218.

The Opackis then moved for dismissal under RCW 4.28.185 and "clarification of the default judgment being 'void.'" CP at 222. The Opackis argued that "there still remains a lack of personal jurisdiction in this case, and therefore dismissal with prejudice is warranted" because Davis and Eves "do not meet the burden of proof establishing jurisdiction over Michigan residents for an [eBay] transaction that took place in Michigan." CP at 224. The trial court denied the motion. The Opackis moved for discretionary review of the trial court's (1) order denying their motion for dismissal and clarification of the default judgment being void, (2) order denying their motion for reconsideration, (3) order granting Davis and Eves's motion for reconsideration, and (4) order vacating the default judgment. We granted discretionary review.

ANALYSIS

I. Personal Jurisdiction: Service of Process

First, the Opackis argue that Davis and Eves's "failure to follow RCW 4.28.185(4) resulted in no personal jurisdiction over the Opackis." Appellants' Br. at 16. Thus, they contend, the trial court could only dismiss their case without prejudice and erred when it allowed Davis and Eves to file the necessary affidavit after it had already dismissed the case. We conclude that the trial court properly allowed Davis and Eves to file the necessary affidavit.

Whether a court has jurisdiction is a question of law subject to de novo review. Crosby v. Spokane County, 137 Wn.2d 296, 301, 971 P.2d 32 (1999). "Proper service of the summons and complaint is a prerequisite to the court obtaining jurisdiction over a party, and a judgment enteredwithout such jurisdiction is void." Woodruff v. Spence, 76 Wn. App. 207, 209, 883 P.2d 936 (1994). "If the court had not acquired jurisdiction over the person of the defendant, she would ordinarily be entitled to immediate dismissal." Bethel v. Sturmer, 3 Wn. App. 862, 865-66, 479 P.2d 131 (1970); see also Mendoza v. Neudorfer Eng'rs, Inc., 145 Wn. App. 146, 149, 185 P.3d 1204 (2008).

"Personal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state." RCW 4.28.185(4). The affidavit must be filed before judgment and should describe the circumstances that prevent in-state service. Sharebuilder Secs., Corp. v. Hoang, 137 Wn. App. 330, 334, 153 P.3d 222 (2007). "The statute [RCW 4.28.185(4)] does not provide that the affidavit must be filed before the summons and complaint are served, but simply that the service will be valid only when such an affidavit is filed. Consequently, the service became valid when the affidavit was filed." Hatch v. Princess Louise Corp., 13 Wn. App. 378, 380, 534 P.2d 1036 (1975) (quoting Golden Gate Hop Ranch, Inc. v. Velsicol Chem. Corp., 66 Wn.2d 469, 472, 403 P.2d 351 (1965)).

If a plaintiff has not complied with RCW 4.28.185(4), then there is no personal jurisdiction and the judgment is void. In Schell v. Tri-State Irrigation, 22 Wn. App. 788, 790, 591 P.2d 1222 (1979), the plaintiff filed the required affidavit a day after the trial court entered a default judgment against the defendants. The court held that the late filing did not constitute substantial compliance with RCW 4.28.185(4) and concluded that the default judgment was void. Schell, 22 Wn. App. at 791-92. In Sharebuilder Securities, the court vacated a default judgment when the affidavit filed did not describe the circumstances that prevented in-state service. 137 Wn. App. at 334-35.

The Opackis argue that dismissal wiped the legal slate clean, that the order of dismissal meant the case ceased to exist. Davis and Eves contend that "[a]lthough the affidavit was filed with Davis' motion for reconsideration, jurisdiction by virtue of proper service was established once the affidavit was filed." Resp'ts' Br. at 11. They contend that the trial court "did not 'resurrect' the case as [the] Opackis claim—the court never lost jurisdiction in the first place." Resp'ts' Br. at 10.

The cases the parties cited—Schell, Hatch, Golden Gate Hop Ranch, and Sharebuilder Securities—all address the dismissal of a default judgment and not the dismissal of a case in its entirety. The dismissal of the case was not at issue in those cases. Those cases do indicate, however, that when a plaintiff has not complied with RCW 4.28.185(4), the court does not have personal jurisdiction. See Sharebuilder Secs., 137 Wn. App. at 335; Hatch, 13 Wn. App. at 380. Here, the trial court properly and immediately vacated the default judgment and dismissed the case without prejudice for lack of jurisdiction over the Opackis. Thus, the dispositive issue is the jurisdictional status of the case after the trial court entered the dismissal order.

"'Jurisdiction means the power to hear and determine.'" State v. Werner, 129 Wn.2d 485, 493, 918 P.2d 916 (1996) (quoting State ex rel. McGlothern v. Superior Court,...