Miebach v. Colasurdo

• Decision Date: 06 October 1983
• Docket Number: No. 9229-4-I,9229-4-I
• Citation: 670 P.2d 276,35 Wn.App. 803
• Court: Washington Court of Appeals
• Parties: William MIEBACH, Respondent, v. Dominic COLASURDO, Appellant, and Valeria K. Colasurdo, a/k/a Valeria Shearer, husband and wife, Appellants. Valeria K. COLASURDO and Dominic Colasurdo, by his Guardian Ad Litem, Valeria K. COLASURDO, Appellant, v. WASHINGTON CREDIT, INC., and University Federal Savings & Loan, Master Mortgages, Arctic Trading Company, William Miebach and Jane Doe Miebach, husband and wife, Respondents.

Page 803

35 Wn.App. 803

670 P.2d 276

William MIEBACH, Respondent, v. Dominic COLASURDO, Appellant, and Valeria K. Colasurdo, a/k/a Valeria Shearer, husband and wife, Appellants.

Valeria K. COLASURDO and Dominic Colasurdo, by his Guardian Ad Litem, Valeria K. COLASURDO, Appellant, v. WASHINGTON CREDIT, INC., and University Federal Savings &

Loan, Master Mortgages, Arctic Trading Company,

William Miebach and Jane Doe Miebach,

husband and wife, Respondents.

No. 9229-4-I.

Court of Appeals of Washington Division 1.

Oct. 6, 1983.

Review Granted Jan. 6, 1984.

Edmond J. Wood, Seattle, for appellants.

Kristine A. Chrey, Mark A. Rossi, Seattle, for Miebach.

C.M. McCune, Seattle, for University Federal Sav. & Loan Ass'n.

Gary Culver, Seattle, for Master Mortgages.

V.A. Retacco, Federal Way, for Wash. Credit.

SWANSON, Judge.

Valeria K. Colasurdo appeals the trial court's entry of a judgment quieting title to real property in William Miebach. We affirm.

On February 26, 1974, Valerie Shearer, the daughter of Valeria Colasurdo, executed an installment note in favor of Group Health Credit Union for $1,300 to purchase a Mercedes automobile. Valeria Colasurdo and her husband, Dominic Colasurdo, ¹ signed the installment note as co-makers. By the clear terms of the note each co-maker was bound as a principal, waived any right to presentment, demand, protest, or notice of nonpayment, and also waived any objection to an assignment of the note for collection or a suit thereon. Shearer made only two payments to Group Health Credit and the Colasurdos none. Subsequently, Group Health Credit assigned the installment note to Washington Credit, Inc., a collection agency.

Washington Credit then instituted collection efforts against Shearer and received some payment from her. Further collection efforts, however, were unsuccessful and Washington Credit filed suit in Seattle District Court on June 23, 1977. Shearer was personally served with a notice of suit and complaint. The Colasurdos were served by substitute service upon their 15-year-old foster daughter, Samatra Phillips, who was then residing at the Colasurdo home. Neither Shearer nor the Colasurdos appeared or defended the district court action and, as a result, a default judgment was rendered against Shearer and the Colasurdos, jointly and severally, on August 3, 1977, in the amount of $1,150.24.

Following the filing of the judgment in the superior court, a praecipe for a writ of execution was issued to Gary Culver as attorney for Washington Credit. Culver drove by the Colasurdo home but observed no personal property on the premises. He then advised the sheriff's office that he was unable to locate any personal property and requested the sheriff to levy upon and sell at execution sale the Colasurdo real estate consisting of their residence.

Pursuant to the praecipe for execution, an execution issued on June 8, 1979. In accordance with then existing statutory requirements, a notice of sheriff's sale was posted on the Colasurdo property, received by both Dominic and Valeria and which Valeria Colasurdo personally read. Additionally, the notice was published for 5 days in the Daily Journal of Commerce. Valeria Colasurdo merely contacted her daughter, Shearer, and told her to "take care of it." Shearer took no action and never reported back to her mother.

At the sheriff's sale, the Colasurdo residence was sold to Washington Credit, the only bidder, for $1,340.02 in full satisfaction of the default judgment. The trial court found that at the time of sale the fair market value of the home was $106,000 with approximately $77,000 as the Colasurdos' equity interest. The property was subject to a superior obligation to University Federal Savings & Loan Association by a deed of trust.

Relying on Culver's letter, the sheriff filed a return of sale on June 30, 1978, stating that he was unable to locate any personal property. An order confirming the sheriff's sale was then entered on September 21, 1978, there being no objections filed. Thereafter, Washington Credit assigned its interest obtained by the sheriff's certification of purchase to Master Mortgages, Inc. for $850. Master Mortgages was a real property holding company solely owned by Gary Culver.

After the 1 year redemption period had expired on July 21, 1978 without payment from the Colasurdos, the property was conveyed by sheriff's deed to Master Mortgages. On September 6, 1979, Master Mortgages conveyed the property by special warranty deed to Arctic Trading Company Inc.

On October 5, 1979, Arctic Trading Company, through Culver, conveyed the Colasurdo property to William Miebach for consideration of $80,000. Miebach had visited the Colasurdo residence before purchasing the property and knew Valeria Colasurdo still resided there even though Colasurdo was not at home at the time. Miebach testified that he saw a permit of some sort indicating some work was going on. He also had discussed sheriff's sales in general and particularly this property with Culver. Culver suggested that Miebach look at the court file. Miebach testified that he relied on his search of the title and the title insurance report in deciding to purchase the property.

Subsequent to purchase, Miebach instituted an unlawful detainer action against Valeria Colasurdo to remove her from her home. Colasurdo then brought a separate action to vacate the August 3, 1977 default judgment and to set aside the sheriff's sale. By stipulation the two actions were consolidated for a trial to the court. The trial court upheld the validity of the default judgment, the sheriff's sale, and all subsequent conveyances of the Colasurdo residence. Accordingly, the trial court entered a judgment quieting title in William Miebach. This appeal followed.

Colasurdo first contends that a number of the trial court's findings of fact are not supported by substantial evidence.

Our review of the record discloses that each and every finding of fact entered by the trial court finds substantial support in the record. The court's oral decision, moreover, shows that the court carefully considered all of the evidence before making its findings. They will not be disturbed on appeal.

Colasurdo's second contention is that the trial court erred by not vacating the default judgment. She presents two reasons for the contention. Initially, she claims service of process was invalid because it was not served upon an individual of suitable age and discretion. We conclude as did the trial court that the substituted service of process upon Phillips, at that time Colasurdo's foster daughter, was valid.

Pursuant to JCR 4(e)(13), personal jurisdiction may be acquired by serving a copy of notice and complaint on the defendant personally or by leaving the notice and complaint "at the house of his usual abode with some person of suitable age and discretion then resident therein." A facially correct return of service, present in this case, is presumed valid and, after judgment is entered, the burden is on the person attacking the service, Colasurdo here, to show by clear and convincing evidence that the service was irregular. Dubois v. Western States Inv. Corp., 180 Wash. 259, 263, 39 P.2d 372 (1934); Allen v. Starr, 104 Wash. 246, 247, 176 P. 2 (1918).

Based on the facts before it, the trial court did not err in concluding that the foster daughter was a person of suitable age and discretion for purposes of receiving service of process. The trial court found that at the time of service the foster daughter was 15 years and some months old, familiar with the court system, a leader of her peer group and concerned with her future. Further, there was testimony at trial indicating that the foster daughter could read and was of at least average intelligence. Courts in other jurisdictions have decided that persons of the same age as the foster daughter are of suitable age and discretion for the purpose of receiving service of process. See Day v. United Sec. Corp., 272 A.2d 448, 449-50 (D.C.1970); Holmen v. Miller, 296 Minn. 99, 206 N.W.2d 916, 919-20 (1973); Annot., 91 A.L.R.3d 827 (1979). The trial court properly concluded that the foster daughter was of suitable age and discretion.

Colasurdo also contends that pursuant to CR 60(b) the default judgment should have been vacated due to unavoidable casualty and misfortune, excusable neglect, and facts sufficient to justify relief from the operation of the judgment. A motion to vacate a judgment on the above-stated grounds is addressed to the sound discretion of the trial court, and its decision will not be overturned on appeal absent an abuse of that discretion. Griggs v. Averbeck Realty, Inc., 92 Wash.2d 576, 582, 599 P.2d 1289 (1979). ² Such a motion generally must be made within 1 year of the judgment's entry. CR 60(b). In addition, to vacate a judgment based upon such a motion the moving party must present facts constituting a defense to the action. Griggs, at 583, 599 P.2d 1289; CR 60(e)(1).

We do not believe the trial court abused its discretion by refusing to vacate the default judgment. One factor supporting the trial court's determination is that Colasurdo did not move to vacate the default judgment until more than 2 years after its entry.

Further, even if the court were to invoke its equitable powers and waive the 1 year limitation as Colasurdo suggests, Colasurdo still failed to present facts establishing a meritorious claim or defense. To be distinguished from the subsequent execution and sheriff's sale, the August 3, 1977 default judgment was entered for an unpaid installment note between Group Health Credit and Valeria Colasurdo as co-maker. By the clear and uncontroverted terms of the installment note, Colasurdo waived any right to presentment, demand, and notice of default. Further, she was bound as a principal. The evidence at trial, moreover, shows that Colasurdo's daughter was in default at the time judgment was entered and that...