{"id":2215,"date":"2018-04-07T13:34:58","date_gmt":"2018-04-07T21:34:58","guid":{"rendered":"http:\/\/trainingpips.com\/?page_id=2215"},"modified":"2019-04-18T03:22:47","modified_gmt":"2019-04-18T11:22:47","slug":"ps-102-chapter-4-article-1-due-diligence-brennan-vs-hurt","status":"publish","type":"page","link":"https:\/\/app.trainingpips.com\/index.php\/ps-102-a-course-outline\/ps-102-understanding-case-summaries\/ps-102-chapter-4-an-introduction-to-due-diligence-case-law\/ps-102-chapter-4-article-1-due-diligence-brennan-vs-hurt\/","title":{"rendered":"PS 102 – Chapter 4 – Article 1 – Due Diligence – Brennan vs Hurt"},"content":{"rendered":"

Summary
\nBrennan, et al. v. Hurt et al, 59 Wn. App 315 (1990)<\/strong><\/span><\/p>\n

Facts<\/strong><\/span><\/p>\n

The Hurts hired Brennan to repair their fishing boat.\u00a0 Brennan was not paid and he filed a complaint for breach of contract.\u00a0 The Sheriff\u2019s return of service upon the Hurts stated that he was \u201cunable to serve \u2013 have left area \u2013 home appears empty.\u201d\u00a0 Brennan then sought service by publication under\u00a0RCW 4.28.100<\/a>.\u00a0 His affidavit in support of publication stated \u201cdue and diligent inquiry of and among the former neighbors and associates of defendants”. . . and that Defendants left the state to avoid service of summons but had property in the state within the jurisdiction of the court.\u00a0 The Hurts failed to appear and judgment was entered against them.<\/span><\/p>\n

Five years later, Brennan located the Hurts in Oregon and garnished their property.\u00a0 Hurts claimed improper service of publication and therefore lack of personal jurisdiction.\u00a0 During post judgment proceedings, Brennan filed five affidavits in opposition to Hurt\u2019s motion to quash the writ of garnishment.\u00a0 These affidavits contained detailed facts showing a reasonably diligent search for Defendants.\u00a0\u00a0\u00a0<\/span><\/p>\n

Judicial History<\/strong><\/span><\/p>\n

Judgment by default was entered by trial court.\u00a0 Trial court denied Defendant\u2019s motion to vacate. The Court of Appeals affirmed denial of motion to vacate.\u00a0\u00a0\u00a0<\/span><\/p>\n

Specific Issues<\/strong><\/span><\/p>\n

    \n
  1. Was the original affidavit from the sheriff in support of service of process by publication sufficient?\u00a0\u00a0No<\/strong>.<\/span><\/li>\n
  2. In a post judgment proceeding will the court allow additional information to support service by publication?\u00a0\u00a0Yes.<\/strong><\/span><\/li>\n
  3. Is there a different standard applied to service by publication in post judgment proceedings?\u00a0\u00a0Yes<\/strong>.<\/span><\/li>\n<\/ol>\n

    Holding<\/strong><\/u><\/span><\/p>\n

      \n
    1. Strict compliance with the statute (RCW 4.28.100<\/a>) is required for jurisdiction to attach when summons is served by publication. \u00a0<\/span>Affidavits supporting service by publication must set forth facts, not just conclusions, showing a reasonably diligent search; a simple averment that a defendant cannot be found within the state is insufficient.<\/span><\/li>\n
    2. The plaintiffs in fact had made a sufficient effort to locate the defendants before serving them by publication, the court affirms the denial of the motion to vacate.<\/span><\/li>\n
    3. What appears prima facie to be defective service can be cured if attacked in a post judgment proceeding by a factual showing that a proper basis for alternative service in fact existed.\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

      Reasoning<\/strong><\/span><\/p>\n

      Plaintiffs\u2019 original affidavit in support of service was insufficient for want of any facts showing a diligent search within the state. Had jurisdiction been attacked before judgment, the trial court would have been required to dismiss.<\/span><\/p>\n

      A different standard applies to post judgment motions, where the order of default or judgment under attack recites service sufficient to confer jurisdiction.<\/span>\u00a0In such cases, a presumption of jurisdiction arises. That presumption can be overcome by showing that publication was based on a defective affidavit.<\/span><\/p>\n

      Here, Brennan filed five affidavits, in opposition to the motion to vacate, containing detailed evidence showing that:<\/span><\/p>\n

        \n
      • The Hurts’ boat was found abandoned in California;<\/span><\/li>\n
      • That the Hurts were in Texas during part of the time in 1983 that Brennan searched for them;<\/span><\/li>\n
      • That inquiries at Angove Accounting revealed no money with which to pay Brennan;<\/span><\/li>\n
      • That Pacific County sheriff’s deputies were attempting to serve the Hurts in three other legal matters during the 1983 period in question.<\/span><\/li>\n<\/ul>\n

        The Court of Appeals agreed with the trial court that these affidavits in substance show that Brennan made “an honest and reasonable effort” to find the Hurts; the law requires no more.<\/span><\/p>\n

        C4PSE\u00a0Comment<\/strong><\/span><\/p>\n

        A service can be called into question at any time. It is for this reason that process servers need to make diligent notes, detailing all that was done and discovered during the process of attempting and or accomplishing service. It is also the reason for keeping these notes.\u00a0\u00a0<\/span>If a service is attacked 5 years after the fact, you should be able to pull up those notes and provide them to your client or the court.<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

        Summary Brennan, et al. v. Hurt et al, 59 Wn. App 315 (1990) Facts The Hurts hired Brennan to repair […]<\/p>\n","protected":false},"author":3,"featured_media":0,"parent":2213,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"site-sidebar-layout":"default","site-content-layout":"default","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"default","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"footnotes":""},"class_list":["post-2215","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/app.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2215","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/app.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/app.trainingpips.com\/index.php\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/app.trainingpips.com\/index.php\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/app.trainingpips.com\/index.php\/wp-json\/wp\/v2\/comments?post=2215"}],"version-history":[{"count":0,"href":"https:\/\/app.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2215\/revisions"}],"up":[{"embeddable":true,"href":"https:\/\/app.trainingpips.com\/index.php\/wp-json\/wp\/v2\/pages\/2213"}],"wp:attachment":[{"href":"https:\/\/app.trainingpips.com\/index.php\/wp-json\/wp\/v2\/media?parent=2215"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}