{"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:\/\/www.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<\/a>. v. Hurt et al<\/a>, 59 Wn. App 315 (1990)<\/strong><\/span><\/p>\n

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

The Hurts hired Brennan to repair their fishing boat.  Brennan was not paid and he filed a complaint<\/a> for breach<\/a> of contract<\/a>.  The Sheriff’s return of service upon the Hurts stated that he was “unable to serve – have left area – home appears empty.”  Brennan then sought service by publication under RCW 4.28.100<\/a>.  His affidavit<\/a> in support of publication stated “due 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<\/a> of the court.  The Hurts failed to appear and judgment<\/a> was entered against them.<\/span><\/p>\n

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

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

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

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

    \n
  1. Was the original affidavit<\/a> from the sheriff in support of service of process by publication sufficient?  No<\/strong>.<\/span><\/li>\n
  2. In a post judgment<\/a> proceeding will the court allow additional information<\/a> to support service by publication?  Yes.<\/strong><\/span><\/li>\n
  3. Is there a different standard applied to service by publication in post judgment<\/a> proceedings?  Yes<\/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<\/a> to attach when summons is served by publication.  <\/span>Affidavits supporting service by publication must set forth facts, not just conclusions, showing a reasonably diligent search; a simple averment that a defendant<\/a> cannot be found within the state is insufficient.<\/span><\/li>\n
    2. The plaintiffs in fact<\/a> had made a sufficient effort to locate the defendants before serving them by publication, the court affirms the denial of the motion<\/a> to vacate.<\/span><\/li>\n
    3. What appears prima facie to be defective service can be cured if attacked in a post judgment<\/a> proceeding by a factual showing that a proper basis for alternative service in fact<\/a> existed.  <\/span><\/li>\n<\/ol>\n

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

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

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

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