Cherokee Bay Community Club, V. Walter E. Bosshart, Et Ano
81572-5
| Wash. Ct. App. | Aug 2, 2021Background
- Walter and Ana Bosshart owned a Maple Valley home subject to Cherokee Bay Community Club covenants; the property suffered long-term neglect (overgrown vegetation, garbage, broken windows/roof damage, expired-plate vehicles, squatters) and was condemned.
- The Association repeatedly notified the Bossharts, assessed fines beginning May 2019, and attempted service: process server visits to the listed home, certified/first-class mail to the home and the Bossharts’ P.O. box (returned), and a posted notice on the property.
- The Association hired an investigator and searched county assessor records and online directories; unable to locate the Bossharts, it served by publication under RCW 4.28.100 on July 30, 2019; the Bossharts did not appear and the court entered default and judgments (including foreclosure-related relief and corrective-cost supplementation).
- After entry of judgment, Ana provided a new Seattle address; a sheriff’s sale was scheduled; the Bossharts moved (March 16, 2020) to vacate the default judgment and quash the sale; the trial court denied the motion; the Bossharts appealed.
- The trial court concluded the Association made an honest and reasonable search before publication service, the Bossharts failed to show a prima facie defense or excusable neglect under CR 60(b)(1), and they did not show ‘‘sufficient cause’’ under RCW 4.28.200; the Court of Appeals affirmed and awarded fees on appeal to the Association.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service by publication (due diligence) | Association performed honest and reasonable search (process server attempts, mailed notices, posted notice, investigator, public-record and online searches) so publication was proper | Bossharts argued Association had e-mail and phone contact info and failed to use those leads or contact possible relatives listed online | Publication service was proper; Association satisfied due diligence and service supported personal jurisdiction |
| CR 60(b)(1) relief to vacate default judgment | Judgment should stand; Bossharts failed to show prima facie defense, excusable neglect, or diligence after judgment; vacatur would unduly prejudice Association | Bossharts claimed mistake/surprise and proffered a declaration blaming Association for notice failings and property issues | Trial court did not abuse discretion denying relief: no prima facie defense, no excusable neglect, and vacatur would cause undue hardship to Association |
| RCW 4.28.200 vacatur after constructive (published) service | Same as CR 60(b)(1): insufficient cause to reopen; service by publication was proper and Bossharts failed to rebut documented violations | Bossharts argued insufficient service and that ‘‘sufficient cause’’ existed to reopen | Court affirmed denial: Bossharts did not show sufficient cause; service by publication was supported by evidence |
| Attorney fees on appeal | Governing documents authorize recovery of costs and attorneys’ fees; prevailing Association entitled to fees on appeal | Bossharts opposed | Fees on appeal awarded to Association subject to RAP 18.1 compliance |
Key Cases Cited
- Martin v. Meier, 111 Wn.2d 471 (1988) (publication requires an honest and reasonable search; not every conceivable lead must be pursued)
- White v. Holm, 73 Wn.2d 348 (1968) (four-prong test for vacating default under CR 60(b)(1): prima facie defense; excusable neglect; diligence after notice; no undue hardship to plaintiff)
- Bruff v. Main, 87 Wn. App. 609 (1997) (strict compliance with RCW 4.28.100 required for service by publication)
- Dobbins v. Mendoza, 88 Wn. App. 862 (1997) (service by publication is only allowed when personal service is unavailable)
- Pascua v. Heil, 126 Wn. App. 520 (2005) (failure to use readily available leads can defeat a claim of reasonable search)
- Charboneau Excavating, Inc. v. Turnipseed, 118 Wn. App. 358 (2003) (criticizes inadequate diligence when obvious leads and records were ignored)
- Rodriguez v. James-Jackson, 127 Wn. App. 139 (2005) (service by publication improper where plaintiff failed to show reasonable efforts to locate defendant)
- Morin v. Burris, 160 Wn.2d 745 (2007) (standard of review: denial of vacatur reviewed for abuse of discretion)
- Edmundson v. Bank of America, 194 Wn. App. 920 (2016) (contractual fee provisions may allow attorneys’ fees on appeal)