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Pascua v. Heil3/22/2005
On interlocutory review, Crystal and Charles Heil contend that the trial court erred in failing to dismiss the personal injury complaint against them because they were improperly served by mail and publication. Because the evidence does not support the authorizing court's findings that the respondent made a diligent search for Crystal or that Crystal had departed the state with the intent to avoid service of process, service on Crystal was improper. In addition, because Charles was a Florida resident and the method of service utilized by the respondent requires the defendant to be a Washington resident, service on Charles was also improper. Concluding that service of process on both Crystal and Charles was improper, we reverse.
FACTS
On June 10, 2000, Renan Pascua and 20-year-old Crystal were involved in a car accident in Thurston County. At that time, Crystal gave the investigating officer her personal information, including her phone number and Lacey, Washington address, and the Florida post office box of Charles, the registered owner of the vehicle.
On March 13, 2003, Pascua filed an amended complaint against Crystal and Charles. Pascua later obtained orders authorizing him to serve the Heils by publication in a Thurston County newspaper and by mail at the Lacey address. The affidavits and motions in support of the orders stated only that Crystal could not be found at the Lacey address, that Pascua had 'attempted a diligent search' to locate the Heils, and that the Heils had 'intentionally conceal{ed} themselves to avoid service.' Clerk's Papers (CP) at 19, 27.
On June 17, 2003, the Heils filed a motion to dismiss in which they asserted that the three-year statute of limitations had run because Crystal had not been properly served and that the amended complaint failed to state a cause of action against Charles. The Heils did not assert in the motion that Charles had been improperly served. In response to the motion to dismiss, the trial court authorized Pascua to amend nunc pro tunc the affidavits in support of his motions for service by mail and publication. The amendment provided specifics as to the efforts undertaken to locate the Heils.
After allowing the amendments, the superior court denied the Heils' motion to dismiss. It concluded that Crystal had been properly served, and issued the following findings: (1) on March 15, 2003, a process server went to the Lacey address and discovered that Crystal no longer resided there; (2) ABC Legal Messenger Service (ABC) had been unable to locate Crystal through a 'metro search' of public records in Washington; (3) ABC had been unable to serve Crystal on an unrelated matter at the Lacey address; (4) the telephone number Crystal had given at the time of the accident was disconnected and there was no forwarding telephone number; (5) the apartment manager of the Lacey address complex advised that, pursuant to company policy, no forwarding address or other identifying information for Crystal was available unless she specifically authorized its release; (6) telephone directory assistance revealed no phone number for Crystal in Washington; (7) Crystal had not been located through an internet search using various search engines; and (8) neither Pascua nor his attorney had received any written notice from Crystal that she had moved residences or changed her telephone number.
Based on these findings, the court concluded that Pascua had made a 'diligent, honest and reasonable search' to locate Crystal (CP at 127), and that because
Crystal Heil had disconnected her telephone number, did not list a forwarding telephone number, did not obtain a new telephone number, did not leave a
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