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Caouette v. Martinez8/19/1993
Shari M. Caouette appeals an order of the Kitsap County Superior Court vacating an order of default and judgment. She contends the trial court erred in concluding that: (1) it lacked jurisdiction to enter the order of default and judgment; and (2) there were independent grounds for vacating the default order and judgment. We reverse and remand for further proceedings.
On June 8, 1986, Shari Caouette was a passenger in an automobile that was struck by a pickup driven by Augustine Martinez. On May 24, 1989, Caouette commenced suit in Kitsap County Superior Court against Augustine Martinez and his spouse, alleging that Augustine Martinez had negligently caused the collision and her resulting injuries. Two weeks later she amended her complaint to add Angelico Martinez and his wife as defendants, claiming that
Angelico was the brother of Augustine Martinez and the owner of the pickup truck driven by Augustine Martinez. She sought a judgment against them on a theory of negligent entrustment.
Caouette hired two process servers to serve the Martinezes. They were unable to locate any of the defendants, despite postal traces, telephone directory searches, and personal inquiries at the defendants' last known addresses in Pierce and Kitsap Counties. The process servers each filed affidavits stating that Angelico Martinez, Augustine Martinez, and their respective spouses could not be found despite "due inquiry" and "diligent search".
On August 3, 1989, Caouette's counsel mailed a letter to the Farmers Insurance Group, believing that the pickup truck driven by Augustine Martinez was insured by that company. He advised Farmers in that letter that his client had filed suit against the Martinezes, was unable to serve them, and thus intended to serve them by publication. On August 11, 1989, Caouette obtained an order from the Kitsap County Superior Court authorizing her to serve all of the defendants by publication. Caouette transmitted that order and the summons to a weekly newspaper in Kitsap County, requesting that the summons be published. The newspaper mistakenly published the order rather than the summons. As a result, the summons was not published until December 20, 1989. The Martinezes failed to appear following that publication and an order of default was entered against them on April 20, 1990.
On October 9, 1990, Caouette presented the Superior Court with an "Affidavit of Plaintiff in Support of Money Judgment" in which she stated that the vehicle that struck her was owned by Angelico Martinez and was driven by his brother, Augustine Martinez. On that same day, the trial court entered a judgment against the Martinezes for $50,932.18, together with attorney fees and costs.
On November 16, 1990, the Martinezes filed a motion and affidavit for an order to show cause why the trial court should not: (1) dismiss Caouette's complaint for lack of personal
jurisdiction; or (2) vacate and set aside the order of default, as well as the findings, conclusions, and judgment. The affidavit stated, in pertinent part, as follows:
Plaintiff failed to obtain service of the summons on any of the defendants by publication or otherwise and the court lacked personal jurisdiction to sign the order of default on April 20, 1990, and the money judgment on October 9, 1990.
Furthermore, the pleadings filed herein do not support a theory of "negligent entrustment" or "family car" to implicate the named insured, Angelico Martinez. . . .
Caouette filed an affidavit in opposition, alleging that she had contacted Augustine Martinez shortly after the accident at the address he had given to a Bremerton police offi
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