Dobbins v. Mendoza

• Decision Date: 16 October 1997
• Docket Number: No. 15611-7-III,15611-7-III
• Citation: 947 P.2d 1229,88 Wn.App. 862
• Court: Washington Court of Appeals
• Parties: Margaret G. DOBBINS, Respondent, v. Jose Luis MENDOZA, husband, Defendant, Mona DeJesus Mendoza, wife, Appellant.

Page 862

88 Wn.App. 862

947 P.2d 1229

Margaret G. DOBBINS, Respondent, v. Jose Luis MENDOZA, husband, Defendant Mona DeJesus Mendoza, wife, Appellant.

No. 15611-7-III.

Court of Appeals of Washington,

Division 3,

Special Panel.

Oct. 16, 1997.

Publication Ordered Dec. 4, 1997.

David B. Trujillo, Selah, for Appellant.

Clinton J. Henderson, Henderson & Grow, Clarkston, for Respondent.

SCHULTHEIS, Acting Chief Judge.

In this action to foreclose a real estate contract, a default judgment was entered after service of process by publication. The court initially vacated the default order and judgment for lack of due diligence in locating the defendants, then reversed itself on reconsideration and reinstated the default order and judgment. Maria DeJesus Mendoza contends the judgment is void because Margaret Dobbins did not use readily available public information in county tax and irrigation district records that could have made personal service possible. We agree and reverse.

By real estate contract executed October 20, 1972, Robert and Margaret Dobbins sold the property at issue to James and Ella Marie Dixon. On August 10, 1983, the Dixons conveyed their interest to Antonio Mendoza by purchaser's assignment of contract and quitclaim deed. On November 4, 1983, Antonio conveyed his interest to Jose Luis Mendoza (his brother) and Mona or Maria DeJesus Mendoza, ¹ husband and wife, by purchaser's assignment of contract and quitclaim deed.

Mr. Dobbins died in October 1973 and Mrs. Dobbins has lived in Potlatch, Idaho, since 1985. Mr. and Mrs. Mendoza lived in Dinuba, California, but worked summers in Washington. Mr. Mendoza died in March 1990 and Mrs. Mendoza has not been back to Washington. She still lives in Dinuba. Contract payments were made to an escrow account for the Dobbinses. Mrs. Dobbins's bank advised her by letter in July 1993, and again in October 1993, that no payments had been received since March 1990. On the advice of her family and her attorney, Clinton Henderson, Mrs. Dobbins decided to foreclose the real estate contract as a mortgage, and quiet title so she could sell the property. On October 19, 1993, Mr. Henderson filed a summons and complaint naming Mrs. Dobbins as plaintiff and Jose Luis Mendoza and Mona DeJesus Mendoza, husband and wife, as defendants.

On November 18 Mr. Henderson moved for service by publication under RCW 4.28.100(5) and (6). ² In his supporting declaration, Mr. Henderson states personal service of a copy of the summons and complaint was made by Legal Couriers, Inc., on

one Javier Mendoza, the alleged brother of Jose Luis Mendoza; however, a person claiming to be Jose Luis Mendoza called [Mr. Henderson's office] within a few hours after the service of process had been effected and stated that he could not be the person named in the complaint, as he had never been a party to a real estate contract for the subject real estate, and that he was not a married person. Therefore, it is unknown and uncertain whether or not service of process has been effected upon the proper party to this lawsuit, and the legal process firm has no knowledge of any other place where service can be effected on the Defendants, or either of them.

4. Therefore, I have no knowledge of the present whereabouts or location of the Defendants named in the complaint, despite diligent inquiry.

5. As the attorney for the Plaintiff, I have made extensive inquiry as to the whereabouts and/or addresses for the named Defendants.

The court granted the motion and ordered service by publication. On February 16, 1994, Mr. Henderson sought and obtained an order of default and judgment against the defendants.

In August 1995 Mrs. Dobbins sold a substantial part of the property at issue to Carlos Martinez on contract for $71,500, with $11,500 down.

On November 17, 1995, Mrs. Mendoza moved to vacate the judgment under CR 60(b)(5) for lack of personal jurisdiction based on failure to comply with the requirements for service of process by publication. She argued the attorney's supporting declaration was inadequate on its face because it failed to set forth facts showing a reasonably diligent search. But because the default order and judgment recite service sufficient to confer jurisdiction, Mrs. Mendoza conceded the court would have to conduct a factual inquiry to determine whether due diligence was actually exercised before service was effected by publication. Brennan v. Hurt, 59 Wash.App. 315, 318-19, 796 P.2d 786 (1990), review denied, 116 Wash.2d 1002, 803 P.2d 1310 (1991). She contended it was not, because the plaintiff and the plaintiff's attorney had in their possession information that would have assisted them in properly naming Mrs. Mendoza as a defendant and in locating her had they simply utilized it.

Mr. Henderson opposed the motion and, on December 15, 1995, filed supplemental declarations from himself, Mrs. Dobbins's grandson Robert Longfellow, process server Dennis Copeland, and the escrow agent handling the postjudgment sale of the property, Paul Hart. ³ In his declaration, Mr. Henderson added that he obtained a title report, which "showed that Jose Luis Mendoza and Mona DeJesus Mendoza, husband and wife, were the purchasers/assignees of a real estate contract between Margaret Dobbins, as seller, and James U. Dixon and Ella Marie Dixon, as purchasers." Mr. Henderson asked Robert Longfellow to find out if anyone was living on the property, and if so, if they knew the whereabouts of Mr. and Mrs. Mendoza. Mr. Longfellow was unsuccessful, so Mr. Henderson hired Legal Couriers, Inc., which served Javier Mendoza. After receiving the telephone call from Javier's brother, Jose Luis Mendoza, Mr. Henderson states he "next initiated telephone calls to various government officials in Yakima County, hoping to obtain an address for Mr. and Mrs. Mendoza." He then moved for service by publication.

Mr. Longfellow, by affidavit, stated he knew when the lawsuit was commenced it would be virtually impossible to locate the Mendozas, because he had inquired as to their whereabouts when he learned payments had ceased. He stated he went to the property and encountered language problems with the man and young woman who were there. The woman indicated they knew nothing about the Mendozas, they paid their rent to a man named Tovias Magana; she gave Mr. Longfellow his telephone number. Mr. Longfellow stated he tried numerous times to reach Mr. Magana by telephone, but was unsuccessful.

Mr. Copeland, in his affidavit of service, stated he found several residents at the property address he was given, but they spoke little English and provided little information. He was told the landlord, who lived in Grandview, came by and picked up the rent once a month. Mr. Copeland located a Jose Mendoza residence in Grandview, verified that he lived there, and served Jose's brother Javier. Mr. Copeland concludes his affidavit by stating: "In my search I used the St. of Washington, all local collection agencies, utilities, neighbors, and other sources available to me. This was a difficult service because of the lack of information and cooperation at the original address."

At oral argument on December 22, 1995, Mrs. Mendoza's attorney related how he contacted the Yakima County Treasurer, provided the legal description of the property, and obtained a copy of the tax record showing assessments were sent to Jose L. and Maria Mendoza, 1003 Viall Road, Grandview, Washington 98930 (which is the address of their property manager, Mr. Magana, and of Jose's brother Antonio when he is working in the area). He argued the failure to use the address in the tax records to try to locate Mrs. Mendoza constituted a lack of due diligence, as a matter of law, under Brenner v. Port of Bellingham, 53 Wash.App. 182, 186-87, 765 P.2d 1333 (1989). The court agreed, granted Mrs. Mendoza's motion and vacated the default judgment. Orally, the court ruled:

In this case, considering the case law of the state, a complete diligent search should include a review of the tax rolls which indeed would have revealed a last known address. Even though Mendoza was no longer living at that address, it was a last known address. As it turned out, whether or not mail would have gotten forwarded, it was a last known address and publicly available on the tax rolls with respect to this particular property.

I am persuaded plaintiff's counsel operated in good faith as did Mr. Longfellow. I am persuaded as a matter of law the diligence required in order to have service by publication was not met.

Both parties moved for reconsideration. Mrs. Mendoza asked the court to increase the amount of the supersedeas bond from $7,500 to $71,500, while Mrs. Dobbins sought reversal, and reinstatement of the default judgment. Mrs. Mendoza introduced the county tax records shown to the court in the previous hearing and pointed out Mrs. Dobbins had actually obtained information from the tax records since the complaint alleged delinquent property taxes in the sum of $661.60 for the year 1993, and the findings of fact included that information. Thus, Mrs. Dobbins clearly had the Mendozas' address and Mrs. Mendoza's correct name available to them, but failed to follow that lead.

Mrs. Dobbins filed an affidavit by Randy Tucker, a Realtor involved in the postjudgment Dobbins/Martinez transaction. Before he listed the property, he had information showing the last owners of record were Jose Luis Mendoza and Maria DeJesus Mendoza, husband and wife. He ordered a title report in May 1995 to verify the foreclosure had been completed and Margaret Dobbins was the owner. After that time, his firm made contact with tenants who spoke only Spanish and, ultimately, with Mr. Magana. According to Mr. Tucker "Mr. Magana indicated he was collecting the [rent] money, but that he did not know how to contact anybody."

After oral argument on January 19, 1996, the court granted Mrs. Dobbins's motion, reversed its...