244 P.3d 565
Ariz. Ct. App.2010Background
- Arizona Real Estate purchased Schrader's Scottsdale home at a trustee's sale on Sept. 9, 2009 and served him with a notice to vacate.
- Arizona Real Estate filed a forcible detainer action under A.R.S. § 12-1173.01 after Schrader failed to vacate.
- Process server attempted service on Oct. 7, 2009; affidavit states only that service was posted and mailed, with no detailing of personal service or multiple attempts.
- Schrader did not appear at the Oct. 19, 2009 hearing; court found in favor of possession and urged judgment lodging.
- A “Notice of Special Appearance” was noted; on Nov. 10, 2009, the court ruled Schrader had been properly served and Schrader entered a general appearance.
- Trial occurred, judgment for forcible detainer entered on Nov. 16, 2009; Schrader appealed, challenging service; appellate court vacated the judgment for improper service of process.]
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service of process was proper. | Arizona Real Estate argues service complied with applicable rules for forcible detainer. | Schrader contends service did not satisfy Rule 4.1(d) and that imprecise service cannot be cured by later appearances. | The judgment is vacated; service was improper and not salvaged by later appearances. |
Key Cases Cited
- Hilgeman v. American Mortgage & Sec., Inc., 196 Ariz. 215 (Ariz. 2000) (void judgment if service improper and not waived)
- National Homes Corp. v. Totem Mobile Home Sales, Inc., 140 Ariz. 434 (Ariz. App. 1984) (jurisdictional defenses not waived by adverse ruling on merits)
- Tarr v. Superior Court, 142 Ariz. 349 (Ariz. 1984) (insufficiency of service must be narrowly pursued to avoid waiver)
- Barlage v. Valentine, 210 Ariz. 270 (Ariz. App. 2005) (due diligence must show specific facts; mere assertion insufficient)
- Wertheim v. Pima County, 211 Ariz. 422 (Ariz. App. 2005) (regarding preservation of errors when service defects are raised)