Blue Palo v. Kimbrough ( 2022 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
BLUE PALO SERVICING COMPANY, Plaintiff/Appellee,
v.
ELEANOR KIMBROUGH, Defendant/Appellant.
No. 1 CA-CV 21-0089
FILED 1-25-2022
Appeal from the Superior Court in Mohave County
No. S8015CV202001201
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
APPEARANCES
Kessler Law Group, Scottsdale
By Eric W. Kessler, Eric Bryce Kessler
Counsel for Plaintiff/Appellee
Eleanor Kimbrough, Yucca
Defendant/Appellant
BLUE PALO v. KIMBROUGH
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Cynthia J. Bailey and Judge Peter B. Swann joined.
W I L L I A M S, Judge:
¶1 Eleanor Kimbrough appeals from the superior court’s
eviction order. For reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 In September 2020, Blue Palo Servicing Company, LLC (“Blue
Palo”) acquired title to a property in Yucca through a tax lien foreclosure
process after the previous owners did not contest the foreclosure action.1
Kimbrough, an elderly woman, had lived at the property with permission
from the previous owners for several years. Once Blue Palo was awarded
title to the property, it delivered to Kimbrough a notice to vacate the
property within five days. Kimbrough did not leave.
¶3 Three months later, Blue Palo filed a forcible detainer action
asking the superior court to evict Kimbrough from the property. The
superior court held a telephonic hearing in January 2021. At the hearing,
Kimbrough stated she still occupied the property and acknowledged
receiving the five-day notice to vacate in September. Though she made no
claim of ownership, she stated she had an arrangement with the previous
owner of the property to be its caretaker and wished to rent it from Blue
Palo. The superior court ordered Kimbrough evicted from the property but
informed it would delay issuing a writ of restitution, which would force
Kimbrough’s removal by law enforcement, for an additional forty-five days
to allow Kimbrough to discuss with Blue Palo the possibility of reaching a
rental agreement. The parties did not reach an agreement.
¶4 Kimbrough timely appealed the eviction order. This court has
jurisdiction under Article 6, Section 9, of the Arizona Constitution and
A.R.S. § 12-2101(A)(1).
1 Mohave County Superior Court Cause No. S8015CV202000413.
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BLUE PALO v. KIMBROUGH
Decision of the Court
DISCUSSION
¶5 Kimbrough’s opening brief did not comply with Rule
13(a)(7)(A) of the Arizona Rules of Civil Appellate Procedure (“ARCAP”)
which requires an appellant to provide “citations of legal authorities and
appropriate references to portions of the record on which the appellant
relies.” In the exercise of our discretion, we address Kimbrough’s appeal to
the extent she developed her arguments. See MacMillan v. Schwartz, 226
Ariz. 584, 591, ¶ 33 (App. 2011) (“Merely mentioning an argument in an
appellate opening brief is insufficient.”).
¶6 Kimbrough’s primary contention is that her procedural due
process rights were violated. More specifically, Kimbrough contends (1) the
certified trial transcripts provided to her, and in turn this court, were not
accurate; (2) she was not provided a court appointed attorney to aid her at
the eviction hearing; and (3) service of the summons and forcible detainer
complaint were insufficient because they did not list her name or mailing
address.
¶7 Kimbrough raises each of these issues for the first time on
appeal, and this court “generally do[es] not consider objections raised for
the first time on appeal.” Christy C. v. Ariz. Dep’t of Econ. Sec., 214 Ariz. 445,
452, ¶ 21 (App. 2007). Kimbrough offers little to support her claim that the
certified transcripts were not accurate and provides no legal authority to
support the notion she had a right to court appointed counsel. As to the
third issue, the record shows Kimbrough appeared at the eviction hearing.
See Ariz. R.P. Evic. Act. 5(f) (providing a defendant in an eviction action
waives objections to the form or manner of service if they appear at the
initial hearing unless those objections were previously asserted).
¶8 “Due process requires notice ‘reasonably calculated, under all
the circumstances, to apprise interested parties of the pendency of the
action and afford them an opportunity to present their objections.’” Blair v.
Burgener, 226 Ariz. 213, 219, ¶ 19 (App. 2010) (quoting Mullane v. Cent.
Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). A superior court’s
jurisdiction over a person is established by “the fact of service and the
resulting notice.” Hirsch v. Nat’l Van Lines, Inc., 136 Ariz. 304, 308 (1983). If
“service remains incomplete, or is defective, the court never acquires
jurisdiction.” Postal Instant Press, Inc. v. Corral Rests., Inc., 186 Ariz. 535, 537
(1996).
¶9 “We review questions concerning the superior court’s
jurisdiction de novo,” State v. Donahoe, 220 Ariz. 126, 127, ¶ 1 n.1 (App. 2009),
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BLUE PALO v. KIMBROUGH
Decision of the Court
but will not set aside the court’s factual findings “unless they are clearly
erroneous,” Ruffino v. Lokosky, 245 Ariz. 165, 168, ¶ 9 (App. 2018).
¶10 In a forcible detainer action, an individual may be served in
various ways including by “delivering a copy of the summons and the
pleading being served to that individual personally” or “leaving a copy of
each at that individual’s dwelling or usual place of abode with someone of
suitable age and discretion who resides there.” Ariz. R. Civ. P. 4.1(d); see
also Ariz. R.P. Evic. Act. 5(e). “Return of service and proof thereof” must be
made by affidavit. Id. “If the name of a defendant is unknown, the summons
and complaint may name a fictitious defendant and any occupants of the
property.” Ariz. R.P. Evic. Act. 5(a).
¶11 The record before us shows a woman occupant was served a
copy of the summons and forcible detainer complaint on January 5, 2021.
On appeal, Kimbrough confirms she was the woman served. The record
also shows Kimbrough acknowledged receiving a five-day notice to vacate
in September 2020, but still occupied the property at the time of the eviction
hearing in January 2021. Blue Palo complied with Rule 5(e) of the Arizona
Rules of Procedure for Eviction Actions (“RPEA”) and Rule 4.1 of the
Arizona Rules of Civil Procedure, and the superior court had jurisdiction
over both the subject matter and Kimbrough personally. Further, nothing
in this record indicates Blue Palo knew of Kimbrough’s name when it filed
the complaint. Thus, Blue Palo’s complaint listing defendants as “the
occupants of [the property]; John Doe and Jane Doe” appropriately
complied with RPEA 5(a). Kimbrough has shown no error, due process or
otherwise.
CONCLUSION2
¶12 For the foregoing reasons, we affirm the superior court’s
order.
AMY M. WOOD • Clerk of the Court
FILED: AA
2 This court acknowledges receipt of Blue Palo’s motion for
procedural order filed on November 24, 2021, as well as Kimbrough’s
response. Because this decision resolves the appeal, we take no action on
Blue Palo’s motion.
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