ShareBuilder Securities Corp. v. Hoang
ShareBuilder Securities Corp. v. Hoang
Opinion of the Court
¶1 ShareBuilder Securities Corporation alleges that Troy Hoang defrauded the corporation of approximately $2,000. It served a summons and complaint for fraud at Troy Hoang’s presumed California residence. Although service was outside Washington, ShareBuilder did not comply with the statutory requirements for out-of-state service. When no one appeared, ShareBuilder obtained a default judgment. But it attempted to collect the judgment from Troy Hoang’s sister, Trang Hoang. The trial court denied Trang Hoang’s motion to vacate based on lack of
¶2 Troy T. Hoang allegedly engaged in fraud. Share-Builder contends that he opened a brokerage account and made a number of transactions. The complaint alleges that Mr. Hoang phoned ShareBuilder several times to inquire about funds that had not yet been sent to his bank account and eventually stole $2,172.26 via wire transfers. ShareBuilder had a California address for Troy Hoang, where at least one check had been mailed to him. A computer database listed numerous aliases for Troy T. Hoang, including “Trang T. Hoang.” However, the database contained several disclaimers regarding its own reliability.
¶3 ShareBuilder sued “Troy T. Hoang aka Trang T. Hoang” individually and the marital community of “Troy T. Hoang and Jane Doe Hoang” for fraud and breach of contract. It served process on an adult resident, Tuan Hoang, at the California address. Trang Hoang, Troy’s sister, lives at that address, but claims that Tuan Hoang did not give her the summons and complaint. She says Troy Hoang is her brother, and they did live together occasionally, but she was not involved in any transactions with ShareBuilder. She claims to know nothing about Troy Hoang’s alleged dealings with ShareBuilder.
¶4 When no one responded, ShareBuilder obtained a default judgment. ShareBuilder entered a sister state judgment in California. That judgment was also served at Trang Hoang’s residence; her father, Alan Hoang, was served. Trang Hoang received the judgment and called Share-Builder’s California counsel the next day. She explained that Troy was her brother, he no longer lived with her, and she knew nothing about the situation. The attorney told Hoang to send copies of her driver’s license and Social
¶5 When her employer received a notice of garnishment, Hoang took legal action. She filed a claim of exemption in California state court, but the judge told her she would need to clear up the matter in Washington. The court below denied her motion to vacate the Washington judgment. Hoang appeals.
II
¶6 This court reviews de novo the trial court’s denial of a motion to vacate a final order for lack of jurisdiction.
Service of Process Outside Washington
¶7 RCW 4.28.185(4) specifies that “[p]ersonal service outside the state shall be valid only when an affidavit is made and filed to the effect that service cannot be made within the state.” The affidavits must be filed prior to judgment.
¶8 ShareBuilder claims substantial compliance because counsel filed an affidavit stating that service was accomplished at Hoang’s California residence:
Attached hereto as Exhibit B is the Proof of Service showing service on defendants Hoang in California on April 7, 2004 by personal service and delivery of copies of the Summons and Complaint to their residence.
No other affidavit, except the process server’s standard affidavit of service, appears in the prejudgment record.
¶9 The above language does not substantially comply with RCW 4.28.185(4). The mere statement that Hoang was served at her California residence does not lead to the logical conclusion that she could not be served within the state. She might also have a residence in Washington or frequent Washington for business purposes. Hoang’s affidavit that she has never been to Washington cannot create substantial compliance because it was not filed before entry of the judgment.
¶10 If a plaintiff has not complied with RCW 4.28.185(4), then there is no personal jurisdiction and the judgment is void.
Named Party
¶11 Hoang also argues that enforcing the judgment against her was improper because she was not a party named in the complaint. ShareBuilder contends that Trang Hoang is named, albeit as an alias. They also suggest that
¶12 Naming the wrong defendant does not automatically render a summons and complaint insufficient, but it must be clear from the record that the party who was served is in fact the correct one.
¶13 The record reflects that Trang Hoang is not the party ShareBuilder intended to sue. This is not based solely on her affidavit but also on the simple fact of her gender. ShareBuilder mistakenly contends that this is solely a case of anonymous internet contact, but company employees spoke to Troy Hoang on the phone and identified him as male. Also, the complaint names Troy Hoang’s marital community of “Troy T. Hoang and Jane Doe Hoang.” The prejudgment record reflects that ShareBuilder intended to
¶14 ShareBuilder’s assertion that Trang and Troy may have been coconspirators is unavailing. The complaint names one party, not two. If there were any indication that Trang was a coconspirator, ShareBuilder should have sued Troy Hoang and Trang Hoang as separate individuals, not by listing Trang as an alias for Troy. The trial court erred by refusing to vacate for lack of personal jurisdiction over Trang Hoang.
Attorney Fees
¶15 As a prevailing party served outside the state, “there may be taxed and allowed to the defendant as part of the costs of defending the action a reasonable amount to be fixed by the court as attorneys’ fees.”
Terms
¶16 ShareBuilder argues that despite reversal, it is still entitled to fees and expenses at the trial and appellate level. When the default is entered due to mistake, delay, or inadvertence by the defendant, and the plaintiffs have clean hands, terms may be appropriate.
¶17 Reversed.
Cox and Dwyer, JJ., concur.
In re Marriage of Wilson, 117 Wn. App. 40, 45, 68 P.3d 1121 (2003).
In re Wilson, 117 Wn. App. at 45.
Schell v. Tri-State Irrigation, 22 Wn. App. 788, 792, 591 P.2d 1222 (1979).
27 Marjorie Dick Rombauer, Washington Practice: Creditors’ Remedies-Debtors’ Relief § 5.4, at 484 (1998),
Barr v. Interbay Citizens Bank of Tampa, 96 Wn.2d 692, 696, 635 P.2d 441, 649 P.2d 827 (1981).
Barr, 96 Wn.2d at 696.
Hatch v. Princess Louise Corp., 13 Wn. App. 378, 380, 534 P.2d 1036 (1975).
Hatch, 13 Wn. App. at 380.
Entranco Eng’rs v. Envirodyne, Inc., 34 Wn. App. 503, 505-06, 662 P.2d 73 (1983).
34 Wn. App. 503, 662 P.2d 73 (1983).
Entranco, 34 Wn. App. at 504.
Entranco, 34 Wn. App. at 506.
Entranco, 34 Wn. App. at 506.
Entranco, 34 Wn. App. at 506.
Entranco, 34 Wn. App. at 506 n.2.
RCW 4.28.185(5).
“The party must devote a section of its opening brief to the request for the fees or expenses. Requests made at the Court of Appeals will be considered as continuing requests at the Supreme Court. The request should not be made in the cost bill. In a motion on the merits pursuant to rule 18.14, the request and supporting argument must be included in the motion if the requesting party has not yet filed a brief.” RAP 18.1(b).
See White v. Holm, 73 Wn.2d 348, 356-57, 438 P.2d 581 (1968); Tiffin v. Hendricks, 44 Wn.2d 837, 845-46, 271 P.2d 683 (1954).
Reference
- Full Case Name
- ShareBuilder Securities Corporation v. Troy T. Hoang
- Cited By
- 11 cases
- Status
- Published