Keith Welch, Appellant V. U.s. Bank National Association, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
U.S. BANK NATIONAL ASSOCIATION,
as Trustee for GreenPoint Mortgage
Funding Trust Mortgage Pass-Through
Certificates, Series 2007-AR2,
Respondent,
v.
KEITH WELCH; All Occupants and
Persons in Possession,
Appellant.
No. 79934-7-I
DIVISION ONE
UNPUBLISHED OPINION
CHUN, J. — After filing a complaint for unlawful detainer, US Bank National
Association could not locate defendant Keith Welch to serve him with process.
The trial court authorized US Bank to serve Welch through alternative means.
The court then held a show cause hearing and issued a writ of restitution in favor
of US Bank. Welch appeals, arguing that deficiencies in the service of the
summons, complaint, and notice of the show cause hearing merit reversal. We
identify only one procedural violation, which was harmless. We affirm.
I. BACKGROUND
US Bank filed a complaint against Welch for unlawful detainer related to
real property in Burlington, Washington (Property).
About a month later, US Bank moved for an order authorizing alternative
service “due to the fact the defendants are evading service.” The court entered

No. 79934-7-I/2
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an order the next day, permitting alternative service.
Soon after, US Bank issued an amended eviction summons. The
summons required Welch to respond by January 4, 2019. US Bank also
submitted a declaration of service claiming that, on December 26, 2018, it posted
at, and mailed to, the Property three copies of the summons and complaint.
US Bank then moved for an order to show cause “why a writ of restitution
should not be issued restoring to [US Bank] possession of the [Property].” The
court granted US Bank’s motion. US Bank notified Welch of the show cause
hearing through alternative service on April 24, 2019.
A few weeks after the court’s order, Welch filed “Defendants Answer and
Affirmative Defenses; and to Dismiss Plaintiffs Complaint; and Grant Defendant a
Continuance Under CR 56(f); and for Costs and Fees under CR 56(g).” The
court held a show cause hearing that both parties attended on May 3, 2019. See
Report of Proceedings May 3, 2019. It then entered a judgment for restitution in
favor of US Bank. Welch appeals.
II. ANALYSIS
A. Service under RCW 59.12.085
Welch argues that the trial court lacked personal jurisdiction over him
because US Bank did not serve him in strict compliance with RCW 59.12.085.1
We disagree.
We review de novo whether service of process was proper. Scanlan v.
1 Welch also appears to suggest that the court should not have authorized
alternative service. But because he does not assign error to this decision, we do not
address the issue. See State v. Olson, 126 Wn.2d 315, 319, 893 P.2d 629 (1995).

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3
Townsend, 181 Wn.2d 838, 847, 336 P.3d 1155 (2014).
To invoke personal jurisdiction over a defendant, there must be proper
service of the summons and complaint. Scanlan, 181 Wn.2d at 847. Such
service must satisfy both statutory and constitutional requirements. Scanlan, 181
Wn.2d at 847. The plaintiff initially bears the burden to prove a prima facie case
of sufficient service. Scanlan, 181 Wn.2d at 847. An affidavit of service that is
regular in form and substance is presumptively correct. Leen v. Demopolis, 62
Wn. App. 473, 478, 815 P.2d 269 (1991). If the plaintiff meets their initial burden,
the party challenging the service must show that it was improper by clear and
convincing evidence. Scanlan, 181 Wn.2d at 847. Evidence is clear and
convincing if it shows the ultimate fact at issue is highly probable. In re
Dependency of K.S.C., 137 Wn.2d 918, 925, 976 P.2d 113 (1999).
RCW 59.12.085 permits alternative service of process by (1) posting the
summons and complaint “in a conspicuous place on the premises unlawfully held
not less than nine days from the return date stated in the summons,” and (2)
depositing copies of the summons and complaint “in the mail, postage prepaid,
by both regular mail and certified mail directed to the defendant or defendants’
last known address not less than nine days from the return date stated in the
summons.” RCW 59.12.085(2)(a)-(b).
Welch claims that US Bank did not comply with RCW 59.12.085 because
it posted the amended summons at the Property on December 28, 2018, which
was fewer than nine days before the January 4, 2019 return date stated in the
summons. But US Bank provided a declaration of service stating that it posted

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and sent by first class and certified mail three copies of the amended summons
and complaint to the Property on December 26, 2018. This satisfied its initial
burden of proving a prima facie case of sufficient service. The burden then
shifted to Welch to show improper service by clear and convincing evidence.
Welch submitted a declaration providing merely that “Plaintiff posted an
amended summons and complaint, on December 28, 2018.” Welch, however,
did not explain in any way the basis for his assertion. For example, he did not
say that he witnessed the posting. As a matter of law, Welch’s unsupported
assertion does not make it highly probable that the declaration of service is
incorrect, and it thus does not constitute clear and convincing evidence to
overcome the presumption that the declaration of service is correct.2 Thus,
Welch fails to meet his burden.3
2 Even assuming, under the clear and convincing standard, Welch had shown
that an issue of fact existed as to whether service was proper, the court could have
properly exercised its discretion to hold an evidentiary hearing if needed for a just
determination. See Woodruff v. Spence, 76 Wn. App. 207, 210, 883 P.2d 936 (1994)
(remanding for an evidentiary hearing where conflicting affidavits created an issue of
fact). Welch, however, did not request an evidentiary hearing below nor does he ask for
one on appeal. Under the facts of this case, had Welch requested such a hearing
below, the court would have been within its discretion in denying it as he submitted only
the unsupported assertion from his declaration to contradict the affidavit of service. Cf.
Woodruff, 76 Wn. App. at 210 (determining that two declarations and an affidavit
contradicting the affidavit of service created an issue of fact); Price ex rel. Estate of Price
v. City of Seattle, 106 Wn. App. 647, 657, 24 P.3d 1098 (2001) (determining that a
declaration was too conclusory to raise an issue of fact on summary judgment).
3 Also, Welch states, “The amended summons received by Appellant Welch was
not filed with the summons.” But he does not explain how this assertion supports any
legal argument, nor does he cite any applicable legal authority. Thus, we need not
consider the assertion. See Bercier v. Kiga, 127 Wn. App. 809, 824, 103 P.3d 232
(2004) (“We need not consider arguments that are not developed in the briefs and for
which a party has not cited authority.”).

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B. Service of Order to Show Cause Hearing Dates
Welch contends that US Bank did not serve him with notice of the show
cause hearing dates in compliance with RCW 59.18.370 or Skagit County Local
Court Rule (SCLCR) 6(d)(2)(i). Though we determine the service violated
SCLCR 6(d)(2)(i), the violation was harmless.
Again, we review de novo whether service of process was proper.
Scanlan, 181 Wn.2d at 847.
RCW 59.18.370 discusses the process for obtaining a writ of restitution
and provides, in relevant part:
The plaintiff . . . may apply to the superior court . . . for an order
directing the defendant to appear and show cause, if any [they have],
why a writ of restitution should not issue restoring to the plaintiff
possession of the property . . . and the judge shall by order fix a time
and place for a hearing of the motion, which shall not be less than
seven nor more than thirty days from the date of service of the order
upon the defendant.
Also, SCLCR 6(d)(2)(i) requires that “[m]otions, other than Summary
Judgment motions, shall be filed and served upon all parties at least nine
(9) court days before hearing.”
Welch contends that US Bank did not comply with RCW 59.18.370
because it did not personally serve him at least seven days before the
hearing date. While US Bank did not personally serve Welch, it served
him through alternate means, which the court had authorized.4 Also, US
4 Welch appears to claim that RCW 59.18.370 was also violated because a court
commissioner, rather than a judge, entered the order to show cause. But our state
constitution grants superior court commissioners the authority “to perform like duties as
a judge of the superior court at chambers.” CONST. art. IV, § 23. This provision grants
commissioners the “same powers which a judge at chambers had the right to exercise at
the time of the adoption of the constitution,” including hearing and determining “all

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Bank submitted a declaration of service showing that on April 24, 2019, it
posted at, and sent by first class and certified mail three copies of the
order to show cause to, the Property. April 24, 2019 was nine calendar
days before the show cause hearing on May 3, 2019. Thus, the service
complied with RCW 59.18.370.
But because US Bank served Welch only seven court days before
the hearing, the service violated SCLCR 6(d)(2)(i). We apply the harmless
error test to the violation of a court rule. State v. Robinson, 153 Wn.2d
689, 697, 107 P.3d 90 (2005). Thus, we reverse only if, within reasonable
probabilities, Welch shows that had the error not occurred, the outcome of
the hearing would have been materially affected. Robinson, 153 Wn.2d at
697; State v. Sublett, 176 Wn.2d 58, 78, 292 P.3d 715 (2012) (noting that
defendant has the burden to show that an error was harmless). As Welch
does not argue that the two-court-day delay in service prejudiced him, the
error does not require reversal.
We affirm.
WE CONCUR:
actions, causes, motions, demurrers, and other matters not requiring a trial by jury.”
State ex rel. Lockhart v. Claypool, 132 Wash. 374, 375-77, 232 P. 351 (1925). Also,
rulings by commissioners are subject to revision by superior court judges.
RCW 2.24.050. In addition, Welch fails to show that having a commissioner, rather than
a judge, enter the order prejudiced him. Thus, we reject Welch’s argument.