Bank of Ny v. Dodev , 246 Ariz. 1 ( 2018 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
THE BANK OF NEW YORK MELLON, Plaintiff/Appellee,
v.
IVAYLO DODEV, Defendant/Appellant.
No. 1 CA-CV 17-0652
FILED 11-20-18
Appeal from the Superior Court in Maricopa County
No. CV2017-009322
The Honorable David W. Garbarino, Judge Pro Tempore
The Honorable Michael L. Barth, Judge Pro Tempore
AFFIRMED
COUNSEL
McCarthy & Holthus LLP, Scottsdale
By Ross Matthew Mumme, Melissa Robbins Coutts
Counsel for Plaintiff/Appellee
Ivaylo Dodev, Gilbert
Defendant/Appellant Pro Se
BANK OF NEW YORK v. IVAYLO DODEV
Opinion of the Court
OPINION
Judge Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
M c M U R D I E, Judge:
¶1 Ivaylo Dodev appeals from a judgment finding him guilty of
forcible detainer. We affirm the judgment and hold: (1) the pendency of
Dodev’s appeal from a previous dismissal without prejudice did not divest
the superior court from jurisdiction to consider the current action; (2)
Arizona Rule of Civil Procedure (“Civil Rule”) 41 is not incorporated into
the Arizona Rules of Procedure for Eviction Actions (“Eviction Rule”),
therefore, the court did not err by refusing to dismiss the current action
based on two prior voluntary dismissals; (3) the superior court properly
allowed alternative service based on sufficient evidence of impracticability;
(4) the superior court did not err by ordering Dodev to file an answer after
determining it had personal jurisdiction; and (5) Arizona Revised Statutes
(“A.R.S.”) section 12-1178 allows for the awarding of attorney’s fees in a
forcible detainer action in a trial court, but A.R.S. § 12-1182 does not provide
for attorney’s fees on appeal.
FACTS AND PROCEDURAL BACKGROUND
¶2 This case has a lengthy history, spanning many courts, 1 cases,
and years. This history provides the context for the issues raised and why
an eviction proceeding—which statutorily must be resolved within two
weeks—has taken years to reach its final non-discretionary review. As of
the filing of this appeal, Dodev continued to occupy the Gilbert residence
1 To understand the parties’ arguments regarding previous filings, we
have taken judicial notice of the records of this court and the superior court
relating to this case. See State v. Valenzuela, 109 Ariz. 109, 110 (1973)
(appellate court reviewed superior court records from other cases relating
to the defendant); In re Sabino R., 198 Ariz. 424 (App. 2000) (holding that
“[i]t is proper for a court to take judicial notice of its own records or those
of another action . . . in the same court”). In addition to the state court
proceedings, see In re Dodev, 2015 WL 4069034, at *1 (B.A.P. 9th Cir. 2015)
(mem. decision).
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Opinion of the Court
at issue (the “Property”), which he originally acquired in 2004. Dodev
defaulted on his home loan in November 2008 but has since succeeded in
remaining on the Property by filing numerous legal actions that delayed the
foreclosure and subsequent trustee’s sale. This appeal is Dodev’s most
recent attempt to retain possession of the Property.
¶3 In February 2016, the Bank of New York Mellon (the “Bank”)
acquired the Property through a trustee’s sale. The Bank served Dodev
written notice to vacate the premises. When Dodev failed to do so, the Bank
pursued forcible detainer (or “eviction”) actions pursuant to A.R.S.
§ 12-1173.01.
The March and August 2016 Actions
¶4 The Bank filed the first eviction action (the “March 2016”
action) in superior court in March 2016, naming both Dodev and his wife as
defendants. After the Dodevs failed to appear for the trial, the court entered
a default judgment against them. The Dodevs moved to set aside the
judgment, claiming they were out of town and had not been properly
served. The court granted the motion. The Dodevs then filed numerous
motions, including, but not limited to, motions to dismiss for lack of subject
matter jurisdiction and for insufficient service. Eventually, the court
scheduled the matter for trial and ordered the Dodevs to file an answer.
¶5 When the Dodevs failed to answer, the Bank again moved for
a default judgment. The court denied the Bank’s motion, stating
“Defendants assert that they filed the Motion to Dismiss in lieu of an
Answer to the Complaint. It appears, therefore, that Defendants may have
misunderstood the Court’s Order setting filing deadlines.” The court
extended the Dodevs’ deadline to file an answer. On the eve of trial, rather
than filing an answer, the Dodevs filed a notice of removal to federal court.
¶6 Eventually, the district court remanded the case for lack of
jurisdiction and the superior court rescheduled the trial. The Dodevs again
moved to dismiss raising jurisdictional challenges. Dodev’s wife
additionally argued that she was not properly served because while Dodev
was personally served at the Property, the process server only provided one
copy of the summons and complaint and did not ask if she was present or
lived on the premises. By the scheduled trial date, Dodev and his wife had
not answered. The court granted Dodev’s wife’s motion to dismiss but
refused to dismiss the action against Dodev. The trial was continued
because Dodev asserted he was not required to file an answer until after the
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Opinion of the Court
court ruled on his jurisdictional motion. The trial was rescheduled with a
new deadline to file an answer.
¶7 The Bank filed a new eviction action in superior court (the
“August 2016” action), naming only Dodev’s wife as a defendant. On the
day set for trial, Dodev filed an “Emergency Motion to Stay All Proceedings
Pending Filing a Petition for a Writ of Certiorari.” The court continued the
trial and scheduled oral argument on the stay motion. Before the argument,
the Bank requested the March 2016 and August 2016 actions be voluntarily
dismissed. The cases were dismissed without prejudice.
The January 2017 Action
¶8 In January 2017, the Bank refiled the eviction action (the
“January 2017” action) against Dodev. The Bank served Dodev via “post
and mail.” See Ariz. R.P. Evic. Act. 5(f), 18(h). Dodev moved to dismiss,
asserting the superior court lacked both personal and subject matter
jurisdiction. Dodev argued the court improperly ordered the alternative
service because the Bank failed to establish “impracticability.” Dodev also
argued the Bank’s voluntary dismissals in the March and August 2016
actions precluded it from refiling a third eviction action under Civil Rule
41(a)(1)(B). The court granted Dodev’s motion to dismiss based on
insufficient process, ruling the Bank failed to show impracticability.
Regarding Dodev’s motion to dismiss based on Civil Rule 41, the court
found that the remaining grounds offered in support of Dodev’s motion to
be “without sufficient factual and/or legal basis for the relief requested.”
Although the court granted Dodev’s motion to dismiss, Dodev appealed
the dismissal order.
The Instant Case
¶9 The Bank refiled the dismissed claims from the January 2017
action. The Bank—again unable to effectuate personal service—moved for
alternative service and filed an affidavit of non-service, stating the process
server knocked on Dodev’s door on five separate occasions on different
days without result. The court granted the Bank’s motion, and an affidavit
of service was filed showing process was completed by alternative means.
Dodev appeared by special appearance for the initial hearing. He made
several personal and subject matter jurisdiction arguments.
¶10 First, Dodev argued that he had not been personally served,
and the Bank’s affidavit of non-service did not “establish that there was
some kind of impediment.” Thus, he asserted, the order granting
alternative service was not appropriate and the court lacked personal
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Opinion of the Court
jurisdiction over him. Dodev also argued the Bank’s motion for alternative
service conflicted with the process server’s affidavit. The motion for
alternative service stated the Property’s “no trespassing” signs made it
impracticable to personally serve Dodev. Yet the affidavit of non-service
indicated that the front door was reached. After hearing from both parties,
the court found that the “disagreement as to the minor details as to what
happened when the process server came out [to the Property] the first five
times” was “[not] material as to whether or not [] service was actually
effectuated in the case.” The court denied Dodev’s oral motion to dismiss,
ruling “service was effectuated,” and the court had jurisdiction.
¶11 Next, referring to the January 2017 action, Dodev argued that
the “court [was] divested from jurisdiction” because the case was pending
on appeal in the Arizona Supreme Court. The court denied the motion to
dismiss on that basis because an appeal is “not pending if [it was] dismissed
without prejudice.”
¶12 Finally, Dodev refused to enter a plea during the hearing,
asserting he should have the time to move for reconsideration regarding
service. The court explained statutory evictions are quick proceedings,
Dodev had properly made a record, and he could appeal an adverse
decision after a final judgment. The court warned Dodev of the
consequences of not filing an answer. The court ordered Dodev to file his
answer by the following day; gave the parties a date to file any dispositive
motions; and scheduled the matter for trial. Dodev orally responded by
asking when he could have the minute entry because he could not answer
until he could see how it was structured, as he intended to appeal the ruling.
The court reiterated its rulings and again warned Dodev of the
consequences of failing to file an answer. Ignoring the court’s warning,
Dodev opted to file a written motion to dismiss for lack of jurisdiction
rather than file an answer. The motion was effectively a motion for
reconsideration as the arguments had been previously raised and rejected
by the court. When no answer was filed, the Bank moved for judgment on
the pleadings.
¶13 At the time set for trial, Dodev again presented the court with
a notice of removal to federal court. The superior court proceedings were
stayed until the district court remanded the case. The superior court held a
status hearing on the complaint after the remand. At the status hearing,
Dodev appeared by special appearance and the Bank pressed the court to
hold the trial that day to avoid additional delays from Dodev. Dodev stated
that he could not proceed because he was “under medication,” and “not
sure [he could] say anything that would lead to a legal conclusion.” Dodev
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Opinion of the Court
re-argued that the court did not have sufficient evidence to order
alternative service because of the conflicting statements in the record.
Because of the “confusion [in] the record,” the court scheduled a hearing
for the process server to testify on the same day as the trial. Dodev
challenged the court’s decision to hold trial on the same day because he was
“pretty sure [he would] need more time to prepare for trial if the court
determine[d] [that it had jurisdiction].” The court again warned Dodev of
the consequences of not filing an answer.
¶14 Nevertheless, Dodev did not file an answer. After hearing
testimony from the process server, the court reaffirmed that service was
properly effectuated and entered a default judgment. Dodev timely
appealed, posted the proper bonds, and still resides on the Property. We
have jurisdiction pursuant to A.R.S. §§ 12-1182 and -2101.
DISCUSSION
A. We Review Whether There was Proper Service De Novo.
¶15 Whether a court has personal jurisdiction over a party, Bohreer
v. Erie Ins. Exch., 216 Ariz. 208, 211, ¶ 7 (App. 2007), or subject matter
jurisdiction over the case, Beatie v. Beatie, 235 Ariz. 427, 430, ¶ 14 (App.
2014), is reviewed de novo. Proper service is a legal question of personal
jurisdiction that we also review de novo. Ruffino v. Lokosky, 245 Ariz. 165,
168, ¶ 9 (App. 2018); Duckstein v. Wolf, 230 Ariz. 227, 233, ¶ 19 (App. 2012)
(citing cases). “Nevertheless, we defer to the superior court’s factual
findings, and will not set them aside unless they are clearly erroneous.”
Ruffino, 245 Ariz. at 168, ¶ 9.
B. The Prior Pending Case Doctrine Did Not Preclude the
Superior Court from Hearing the Current Case.
¶16 Dodev contends that the prior pending case doctrine
precluded the superior court from entertaining the current action because
the Arizona Supreme Court had not ruled on his petition for review from
the dismissal of the January 2017 action before the Bank refiled the case. He
argues that the superior court should have stayed the proceedings until the
appeal was finally resolved.
¶17 Under the prior pending case doctrine, “where two tribunals
have concurrent jurisdiction, the first acquiring jurisdiction retains it to the
exclusion of the other until the case is finally determined.” Agric. Emp’t
Relations Bd. v. United Farm Workers of Am., 26 Ariz. App. 336, 340 (1976);
Astorga v. Wing, 211 Ariz. 139, 144, ¶ 24, n.5 (App. 2005) (doctrine applies
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Opinion of the Court
only when tribunal’s authority derives from the same sovereign). For the
reasons discussed below, we hold that the doctrine does not apply to the
refiling of an action after a dismissal of a case without prejudice.
¶18 “The principle is well established that an appeal generally
divests the trial court of jurisdiction to proceed except in furtherance of the
appeal.” Castillo v. Indus. Comm’n, 21 Ariz. App. 465, 467 (1974). However,
our supreme court summarized the principle as follows:
The jurisdiction of this court when properly invoked must be
protected. It cannot be defeated or usurped to the extent that
its decision when rendered be nugatory.
Continental Cas. Co. v. Indus. Comm’n, 111 Ariz. 291, 294 (1974) (emphasis
added) (quoting Whitfield Transp., Inc. v. Brooks, 81 Ariz. 136, 141 (1956)).
“By allowing the trial court to proceed with issues not directly involved in,
or the subject matter of the appeal, the jurisdiction of the appellate court is
adequately protected, and at the same time the trial court proceedings are
not inordinately delayed pending the appellate decision.” State v. O’Connor,
171 Ariz. 19, 22 (App. 1992). Accordingly, the superior court “retains
jurisdiction to act so long as that act cannot negate the decision in a pending
appeal or frustrate the appellate process.” Id.; Ariz. Corp. Comm’n v. Citizens
Util. Co., 120 Ariz. 184, 193 (1978).
¶19 However, appellate jurisdiction does not generally arise until
a final appealable determination is rendered in the trial court. A.R.S.
§ 12-2101(A)(1). Thus, a dismissal without prejudice is only appealable if
the dismissal results in finality. See Garza v. Swift Transp. Co., 222 Ariz. 281,
284, ¶ 15 (2009) (absent a showing of prejudice, an order is appealable when
it in effect determines the action); Dunn v. FastMed Urgent Care PC, 245 Ariz.
35, 37, ¶ 9 (App. 2018) (recognizing exceptions to the general rule); Brumett
v. MGA Home Healthcare, L.L.C., 240 Ariz. 420, 432, ¶ 32 (App. 2016) (citing
cases). Accordingly, the superior court had jurisdiction to hear the current
eviction action even though Dodev was attempting to appeal the prior
dismissal. As applicable here, a determination is final in an eviction action
when it includes a judgment for the plaintiff or defendant for possession of
the premises and resolves other issues such as damages, attorney’s fees, and
court and other costs. See Bank of N.Y. Mellon v. Lehnerd, 2 CA-CV 2014-0160,
2016 WL 1554292, at *1–2, ¶¶ 6–9 (Ariz. App. April 15, 2016) (mem.
decision). The January 2017 action’s dismissal without prejudice did none
of these things and, instead, was based on insufficient service and was not
an adjudication on the merits. See Union Interchange, Inc. v. Van Aalsburg,
102 Ariz. 461, 464 (1967) (“A dismissal without prejudice does not go to the
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Opinion of the Court
merits of the plaintiff’s cause and does not bar plaintiff from later filing on
the same cause of action.”); Airfreight Exp. Ltd v. Evergreen Air Ctr., Inc., 215
Ariz. 103, 108, ¶ 13 (App. 2007). Significantly, the prior dismissal did not
conclude with a judgment resolving which party was entitled to actual
possession.
¶20 Although Dodev appealed the dismissal order, this court
declined jurisdiction to hear the appeal based on the lack of a final
appealable order. Dodev moved for reconsideration of that order and
added an emergency motion to dismiss the current action that was then
pending in the superior court. We denied these motions. Dodev then sought
review from the Arizona Supreme Court and asked it to stay the current
action. Our supreme court denied the motion for stay and declined to accept
review. Neither appellate court ever accepted or had appellate jurisdiction;
thus, the appeal was not “properly invoked,” and the superior court never
lost jurisdiction over the current case. See Continental Cas. Co., 111 Ariz. at
294.
C. Arizona Rule of Civil Procedure 41(a)(1)(B) is Not
Applicable in Eviction Actions.
¶21 Dodev contends the superior court erred by not dismissing
the current action under Civil Rule 41. He argues that because the Bank
cited Civil Rule 41 as the basis for its two previous voluntary dismissals,
the second voluntary dismissal was an adjudication on the merits. See Ariz.
R. Civ. P. 41(a)(1)(B); 2 Commercial Space Mgmt. Co. v. Boeing Co., 193 F.3d
1074, 1076 (9th Cir. 1999) (“[A] voluntary dismissal of a second action
operates as a dismissal on the merits if the plaintiff has previously
dismissed an action involving the same claims. This is known as the ‘two
dismissal rule.’”). We disagree that Civil Rule 41 applies in this case.
¶22 Our supreme court enacted the Eviction Rules to replace the
Rules of Civil Procedure in eviction actions. See Ariz. R.P. Evic. Act. 1. A
forcible detainer action is an “eviction action” for purposes of the Eviction
Rules. Id. A Civil Rule only applies in an eviction action when it is explicitly
2 Civil Rule 41(a)(1)(B) reads:
Unless the notice or order states otherwise, the dismissal is
without prejudice. But if the plaintiff previously dismissed an
action in any court based on or including the same claim, a
notice of dismissal operates as an adjudication on the merits.
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Opinion of the Court
incorporated by an Eviction Rule. Id.; see Sotomayor v. Sotomayor Munoz, 239
Ariz. 288, 290, ¶ 8 (App. 2016) (“[T]he rules of civil procedure do not apply
in eviction actions unless specifically incorporated by reference.”); see also,
e.g., Ariz. R.P. Evic. Act. 9(j) (“All motions requesting an order for relief
filed with the superior court shall be copied to the assigned judge,
accompanied by a proposed order, which shall comply with the formatting
requirements of Rule 5.1(d) of the Arizona Rules of Civil Procedure.” (emphasis
added)). Our supreme court did not incorporate Civil Rule 41(a)(1)(B) into
the Eviction Rules.
¶23 The Bank’s mislabeling of a voluntary request to dismiss as a
Rule 41(a)(1) motion did not alter its effect, which was a dismissal based on
lack of service. Eviction Rule 9 governs the procedure for various
enumerated motions, and Rule 9(h) permits either party to make “[o]ther
appropriate motions.” Eviction Rule 5(f) allows for “[a] complaint that is
not served within the time required by applicable statute [to] be dismissed
at the initial appearance date.” See also Ariz. R.P. Evic. Act. 13(a)(2) (“[T]he
court shall . . . [d]etermine whether the tenant or occupant of the premises
received proper termination notice if one was necessary, and was afforded
any applicable opportunity to cure. If the notice does not comply with the
statute or is not properly served, the court shall dismiss the action.”). The
language in Eviction Rule 5(f) that an action may be dismissed at the initial
hearing does not prevent a party from dismissing a complaint prior to the
hearing. It is unnecessary to expend additional judicial resources by
requiring the court to conduct, and a plaintiff to attend, an initial hearing
when service has not been effectuated and the result of the hearing would
be a dismissal without prejudice. We read Eviction Rule 9(h) to allow the
filing of a motion to voluntarily dismiss an unserved complaint.
¶24 As support for his position, Dodev references a minute entry
from the January 2017 action where the superior court questioned the
Bank’s use of—and concurrent objection to Dodev’s use of—Civil Rule 41.
He also cites to a memorandum decision from this court, Brosnahan v.
Federal National Mortgage Ass’n, 1 CA-CV 11-0709, 2012 WL 4963189, at *1,
¶ 9 (Ariz. App. Oct. 18, 2012) (mem. decision), an appeal of an eviction
action where we also cited the then current version of Civil Rule 41 for the
proposition that a plaintiff may dismiss an action without prejudice before
an answer is filed. We disagree that there is an “open question” regarding
the applicability of Civil Rule 41 to eviction actions. No Arizona caselaw
supports the proposition that a plaintiff will be barred from bringing an
eviction action after two voluntary dismissals. Although courts have
referred to a voluntary dismissal of an eviction action using the Civil Rule
41 label, it does not appear that the “two dismissal rule” of Civil Rule 41
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has ever been applied in a forcible detainer action under Eviction Rule 9.
We decline to do so now. 3
D. The Superior Court Did Not Err by Granting a Default
Judgment Against Dodev for Failing to Answer.
¶25 Dodev contends that the superior court erred by entering a
default judgment against him while he was challenging personal
jurisdiction. He argues that because his motion to dismiss was still pending
when the court ordered him to file an answer, his compliance would have
resulted in a waiver of all jurisdictional challenges. This argument fails for
two reasons. First, the court denied Dodev’s motion to dismiss for lack of
jurisdiction before ordering him to answer. And second, the court had
jurisdiction over Dodev when it ordered him to file the answer.
1. The Court Did Not Err by Ordering Dodev to File an
Answer Before Ruling on His Motion to Reconsider.
¶26 Dodev argues that he could not have filed an answer before
the day of the trial because the court held the evidentiary hearing to
determine whether alternative service was appropriate on the same day. A
defendant who enters a general appearance after an adverse ruling on a
jurisdictional defense has not waived that defense on appeal. Ariz. Real
Estate Inv., Inc. v. Schrader, 226 Ariz. 128, 129–30, ¶ 7 (App. 2010). Dodev
concedes that Schrader preserves a jurisdictional defense on appeal when a
defendant makes a general appearance after the jurisdictional motion is
denied but attempts to distinguish Schrader from his situation. For support,
Dodev cites to Kline v. Kline, 221 Ariz. 564, 568, ¶ 10 (App. 2009).
¶27 However, Kline specifically did not address personal
jurisdiction. 221 Ariz. at 568, ¶ 12, n.3 (“On October 3, 2006, we ruled in a
special action proceeding that the trial court had personal jurisdiction over
Husband. As a consequence, Husband is precluded from relitigating the
issue of personal jurisdiction . . . .”). In Kline, the husband was personally
served with a petition for dissolution, but not with the amended petition,
which included a demand for spousal maintenance. Id. at ¶ 3. The
husband’s lawyer appeared on behalf of the husband by “special
appearance,” contesting personal jurisdiction. Id. at ¶ 4. On special action,
3 Because we determine that Civil Rule 41 does not apply in a forcible
detainer action, we have not determined if the Bank’s voluntary dismissals
in this case would have otherwise invoked the two dismissal rule.
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this court determined that the superior court had personal jurisdiction over
the husband. Id. The husband’s lawyer continued to appear by special
appearance, but never filed an answer. Id. at ¶¶ 4–5. The husband then
appealed the resulting default judgment the superior court entered against
him. Id. at ¶ 10. We determined there was no error and affirmed the default
judgment because personal jurisdiction had already been established in the
case; husband’s lawyer expressly confirmed his knowledge of the amended
petition’s request for spousal maintenance; and the husband was not
prejudiced by the lack of service in accordance with the applicable rule. Id.
at 570–71, ¶¶ 21–24.
¶28 In some respects, Dodev is correct that Kline resembles his
circumstances:
This is a case in which personal jurisdiction had been
established and a fully informed . . . party who actively
litigated his case elected to have default entered against him.
To claim the protection of ARFLP 44(G) in these
circumstances offends the very purpose of the rule. Like Ariz.
R. Civ. P. 54(d), ARFLP 44(G) was intended to serve as a
shield for those prejudiced by a lack of notice, not as a sword
for those who, with full information, elect to be defaulted.
221 Ariz. at 571, ¶ 23. Like Kline, Dodev was fully informed regarding the
pleading requirements after the court determined that personal jurisdiction
had been established. Under Schrader, Dodev’s participation in the case
after the court resolved the issue of personal jurisdiction would not have
waived his personal jurisdiction claim. 226 Ariz. at 129–30, ¶ 7. Therefore,
we review de novo whether the court erred by determining there was
sufficient process.
2. The Superior Court Had Sufficient Evidence of
Impracticability to Grant the Bank’s Motion for
Alternative Service.
¶29 Dodev argues that the superior court granted the Bank’s
motion for alternative service without a sufficient showing of
impracticability. “Proper, effective service on a defendant is a prerequisite
to a court’s exercising personal jurisdiction over the defendant.” Barlage v.
Valentine, 210 Ariz. 270, 272, ¶ 4 (App. 2005). Whether a court has
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
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jurisdiction.” Postal Instant Press, Inc. v. Corral Rests., Inc., 186 Ariz. 535, 537
(1996).
¶30 Under Eviction Rule 5(e), service in a forcible detainer action
must comply with Civil Rule 4.1, which provides:
an individual may be [personally] served by: (1) delivering a
copy of the summons and the pleading being served to that
individual personally; [or] (2) 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.
When a party demonstrates that personal service would be impracticable,
the court may order service to be accomplished in another manner. Ariz. R.
Civ. P. 4.1(k). Citing to Blair v. Burgener, 226 Ariz. 213 (App. 2010), Dodev
contends that “five naked service attempts, without reaching out to
immediate family members, work place(s), neighbors, and/or making
phone calls to determine if the subject is even in town at the time of the
alleged service attempts, neither constitute impracticability, nor warrants a
motion for order authorizing alternative service.”
¶31 Impracticable does not mean impossible, but rather that
service would be “extremely difficult or inconvenient.” Blair, 226 Ariz. at
218, ¶ 17. “[T]his standard requires something less than the ‘due diligence’
showing required before service by publication may be utilized.” Id. at ¶ 16;
cf. Ruffino, 245 Ariz. at 170, ¶¶ 13–15 (addressing lack of due diligence for
service by publication). “[A] forcible detainer action is a summary, speedy
and adequate statutory remedy for obtaining possession of premises by one
entitled to actual possession.” Carrington Mortg. Servs. v. Woods, 242 Ariz.
455, 456, ¶ 6 (App. 2017). “Although [the need to make speedy and quick
determinations in a forcible detainer action] is a legitimate concern, it
cannot be the sole basis for establishing impracticability.” Schrader, 226
Ariz. at 130, ¶ 12.
¶32 While the concern for a speedy resolution cannot be the sole
basis for impracticability, it is nonetheless a consideration a court must
weigh when examining the circumstances. The Bank provided the court
with an affidavit of non-service showing that over the course of five days
the process server attempted to personally serve Dodev on five occasions,
at different times of the day. Given the speedy nature of a forcible detainer
proceeding, and the history of the proceedings as described above, the court
did not err by finding it unlikely that further attempts at personal service
would yield a different result. The affidavit of non-service was sufficient to
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support the conclusion reached by the court that personal service would be
extremely difficult or inconvenient. See Blair, 226 Ariz. at 218, ¶ 17.
3. The Court Did Not Err by Granting a Default
Judgment Against Dodev.
¶33 Next, Dodev argues that the superior court denied him the
right to answer the complaint. We disagree. As described above, Dodev
would not have waived his jurisdictional arguments by answering the
complaint. The court provided numerous opportunities for Dodev to
answer and warned him of the consequences if he did not. We conclude
there was ample opportunity for Dodev to present a defense; his conscious
and informed decision to ignore the court’s directive is not a basis for
setting aside the judgment.
E. The Superior Court Did Not Err by Awarding Attorney’s
Fees to the Bank.
¶34 Finally, Dodev argues in his reply brief that the superior court
erred by awarding attorney’s fees in this forcible detainer action. See DVM
Co. v. Stag Tobacconist, Ltd., 137 Ariz. 466, 468 (1983) (attorney’s fees not
authorized in eviction actions under previous version of A.R.S.
§ 12-1178(A) (1939)). Because the attorney’s fees issue was not raised in the
opening brief, we could consider the issue waived. See ARCAP 13(a)(6);
Nelson v. Rice, 198 Ariz. 563, 567, ¶ 11, n.3 (App. 2000). However, given the
confusion around whether attorney’s fees can be awarded in a forcible
detainer action, we elect to address the issue. See Clemens v. Clark, 101 Ariz.
413, 414 (1966) (appellate court may entertain the merits of an issue even if
deficiently briefed); Delmastro & Eells v. Taco Bell Corp., 228 Ariz. 134, 137,
¶ 7, n.2 (App. 2011).
¶35 “It is a generally accepted rule that attorney’s fees are not
recoverable unless they are expressly provided for either by statute or
contract.” DVM, 137 Ariz. at 468. After DVM, the question of whether a
court can award attorney’s fees in a forcible detainer action has been
repeatedly addressed because of revisions to A.R.S. § 12-1178. See, e.g.,
RREEF Mgmt. Co. v. Camex Productions, Inc., 190 Ariz. 75, 80 (App. 1997)
(revision of A.R.S. § 33-1315(A)(2) providing attorney’s fees to the
prevailing party in a forcible detainer action under the Landlord Tenant Act
applied only to residential leases); Camelback Plaza Dev., L.C. v. Hard Rock
Cafe Int’l (Phoenix), 200 Ariz. 206, 209–10, ¶¶ 5–15 (App. 2001) (revisions to
A.R.S. § 12-1178 allowing for recovery of “all charges” in the rental
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BANK OF NEW YORK v. IVAYLO DODEV
Opinion of the Court
agreement was not intended to include attorney’s fees for a commercial
lease).
¶36 Previously, we held that a party was permitted to an award
of attorney’s fees in a forcible detainer action only when the action arose
after termination of a residential lease. See RREEF Mgmt. Co., 190 Ariz. at
80. However, in 2008, the legislature revised A.R.S. § 12-1178(A) relating to
the awarding of attorney’s fees in an eviction action in a trial court:
If the defendant is found guilty of forcible entry and detainer
or forcible detainer, the court shall give judgment for the
plaintiff for restitution of the premises, for all charges stated
in the rental agreement and for damages, attorney fees, court
and other costs and, at the plaintiff’s option, all rent found to
be due and unpaid through the periodic rental period, as
described in § 33-1314, subsection C, as provided for in the
rental agreement, and shall grant a writ of restitution.
(Emphasis added). Because A.R.S. § 12-1178 now specifically provides an
independent basis for awarding attorney’s fees, regardless of whether the
parties are subject to a contract that provides for such fees, the superior
court did not err by awarding the Bank its attorney’s fees. To the extent
previous decisions held that a trial court lacked the authority to award
attorney’s fees in a forcible detainer action, those decisions have been
statutorily overruled by the legislature’s amendment to A.R.S. § 12-1178(A).
ATTORNEY’S FEES AND COSTS ON APPEAL
¶37 The Bank requests this court to award its attorney’s fees on
appeal pursuant to A.R.S. § 12-341.01, ARCAP 25, and A.R.S. § 12-1178(A).
¶38 We understand the Bank’s argument to be that the note and
deed of trust between the Bank and Dodev are contracts that bring its claim
for fees under the purview of A.R.S. § 12-341.01(A), which permits an
award of attorney’s fees to the prevailing party in a dispute that arises out
of contract. But a forcible detainer action following a trustee’s sale does not
arise out of contract. Carrington, 242 Ariz. at 457, ¶ 14 (citing RREEF Mgmt.,
190 Ariz. at 80). A party who had a lawful possessory interest in property
and who continues in possession of the property after its interest is
terminated by a trustee’s sale becomes a “tenant at sufferance.” Grady v.
Barth ex rel. County of Maricopa, 233 Ariz. 318, 321, ¶ 12 (App. 2013). A
contract does not exist between a “landlord” and a “tenant at sufferance.”
Id. The forcible detainer action arises from Dodev’s status as a tenant at
sufferance following the trustee’s sale, and not from any contractual
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BANK OF NEW YORK v. IVAYLO DODEV
Opinion of the Court
relationship he may have had with the Bank prior to that sale. Therefore,
we decline to award the Bank attorney’s fees on appeal based on A.R.S.
§ 12-341.01(A).
¶39 Regarding ARCAP 25, “[w]e impose sanctions under ARCAP
25 only ‘with great reservation.’” Villa de Jardines Ass’n v. Flagstar Bank, FSB,
227 Ariz. 91, 99, ¶ 26 (App. 2011) (quoting Ariz. Tax Res. Ass’n v. Dep’t of
Revenue, 163 Ariz. 255, 258 (1989)). The Bank did not address why sanctions
under ARCAP 25 should be imposed. Because the Bank failed to offer
argument to justify sanctions under ARCAP 25, it has waived the issue, and
we decline to award attorney’s fees as a sanction. See ARCAP 13(a)(7) (“An
‘argument’ . . . must contain . . . contentions concerning each issue
presented for review, with supporting reasons for each contention, and
with citations of legal authorities and appropriate references to the portions
of the record on which the [party] relies.”); Stafford v. Burns, 241 Ariz. 474,
483, ¶ 34 (App. 2017) (the failure to develop an argument in a meaningful
way constitutes a waiver).
¶40 The Bank has likewise failed to provide support or argument
for its contention that A.R.S. § 12-1178, which applies to trial court
proceedings, allows this court to award fees on appeal. A.R.S. § 12-1182 4
discusses appeals relating to forcible detainers filed in the superior court
and provides that the appellant “will pay the rental value of the premises
pending the appeal and all damages, costs, and rent adjudged against him”
by the appellate court. As noted in our previous caselaw, costs and damages
4 A.R.S. § 12-1182, reads as follows:
A. In a forcible entry or forcible detainer action originally
commenced in the superior court, an appeal may be taken to the
supreme court as in other civil actions.
B. The appeal, if taken by the party in possession of the premises,
shall not stay execution of the judgment unless the superior court so
orders, and appellant shall file a bond in an amount fixed and
approved by the court, conditioned that appellant will prosecute the
appeal to effect and will pay the rental value of the premises pending
the appeal and all damages, costs, and rent adjudged against him by
the superior court or the supreme court.
See also Morgan v. Cont'l Mortg. Inv'rs, 16 Ariz. App. 86, 91 (1971)
(interpreting § 12-1182 to apply to the court of appeals when original action
commenced in superior court).
15
BANK OF NEW YORK v. IVAYLO DODEV
Opinion of the Court
do not include attorney’s fees. Camelback Plaza Dev., L.C., 200 Ariz. at
209–10, ¶ 10.
¶41 Because the Bank failed to provide us with authority or
argument to award attorney’s fees on appeal, we deny the Bank’s request.
As the prevailing party, the Bank is entitled to costs upon compliance with
ARCAP 21.
CONCLUSION
¶42 For the foregoing reasons, we affirm the judgment.
AMY M. WOOD • Clerk of the Court
FILED: JT
16