433 P.3d 549
Ariz. Ct. App.2018Background
- Bank of New York Mellon purchased the subject property at trustee’s sale in Feb 2016 and sought possession via forcible detainer (eviction) actions after tenant Ivaylo Dodev failed to vacate.
- The Bank filed multiple eviction actions (March 2016, August 2016, January 2017) that were dismissed without prejudice at various points—primarily for insufficient service—after protracted procedural skirmishing and a federal removal/remand.
- The Bank refiled in 2017 and obtained court-ordered alternative service (post and mail) after an affidavit of non-service showing several attempted personal services; Dodev contested personal jurisdiction and the adequacy of the impracticability showing.
- The superior court denied Dodev’s motions to dismiss (including that a prior pending appeal divested jurisdiction), ordered him to file an answer, and ultimately entered default judgment when he failed to answer; Dodev appealed.
- The court addressed several legal questions on appeal: effect of a prior pending appeal, applicability of Civil Rule 41 two-dismissal rule to eviction proceedings, sufficiency of alternative-service showing, propriety of ordering an answer after jurisdiction was found, and whether attorney’s fees are recoverable in forcible detainer actions and on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pendency of Dodev’s appeal from prior dismissal divested superior court of jurisdiction to hear refiling | Bank: prior dismissal was without prejudice so refiling was proper; superior court retained jurisdiction | Dodev: pending appeal to AZ Supreme Court divested trial court and required stay | Court: appeal of dismissal without prejudice did not divest superior court; refiling permissible |
| Whether Civil Rule 41(a)(1)(B) two-dismissal rule bars Bank’s refiling | Bank: voluntary dismissals were proper and did not preclude refiling under Eviction Rules | Dodev: Bank’s two prior voluntary dismissals operate as an adjudication on the merits under Rule 41 | Court: Civil Rule 41 is not incorporated into Eviction Rules; two-dismissal rule does not apply to eviction actions |
| Whether alternative service was authorized (impracticability) | Bank: process server’s affidavit of five attempts and property history made personal service impracticable | Dodev: five attempts without contacting family/neighbors or other steps not sufficient to show impracticability | Court: affidavit showed impracticability in the summary eviction context; alternative service was proper |
| Whether attorney’s fees may be awarded (trial and on appeal) | Bank: statute and contract support awarding fees, including on appeal | Dodev: fees not permitted in forcible detainer actions; appellate fees not provided | Court: A.R.S. § 12-1178 permits attorney’s fees in trial forcible detainer judgments; A.R.S. § 12-1182 and applicable authority do not support awarding attorney’s fees on appeal |
Key Cases Cited
- Continental Cas. Co. v. Indus. Comm’n, 111 Ariz. 291 (explains limits on trial court action while appeal is pending to protect appellate jurisdiction)
- Blair v. Burgener, 226 Ariz. 213 (defines impracticability standard for alternative service)
- Carrington Mortg. Servs. v. Woods, 242 Ariz. 455 (characterizes forcible detainer following trustee’s sale as arising from possessory status, not contract)
- RREEF Mgmt. Co. v. Camex Productions, Inc., 190 Ariz. 75 (discusses historical limits on awarding attorney’s fees in forcible detainer matters)