THE BANK OF NEW YORK MELLON, Plaintiff/Appellee, v. IVAYLO DODEV, Defendant/Appellant.
No. 1 CA-CV 17-0652
ARIZONA COURT OF APPEALS DIVISION ONE
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
McCarthy & Holthus LLP, Scottsdale By Ross Matthew Mumme, Melissa Robbins Coutts Counsel for Plaintiff/Appellee
Ivaylo Dodev, Gilbert Defendant/Appellant Pro Se
Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
McMURDIE, 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 tо 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)
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
at issue (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
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 remandеd 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
¶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) аgainst Dodev. The Bank served Dodev via “post and mail.” See
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. Dоdev 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
¶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
¶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
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 оf 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
¶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.
¶20 Although Dodev appealed the dismissal order, this court declined jurisdiction to hear the appeal based on the lack of a final appealаble 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 Prоcedure 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
¶22 Our supreme court enacted the Eviction Rules to replace the Rules of Civil Procedure in eviction actions. See
incorporated by an Eviction Rule.
¶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
¶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 conсurrent 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 voluntаry dismissal of an eviction action using the Civil Rule 41 label, it does not appear that the “two dismissal rule” of Civil Rule 41
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 cоurt 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 рreserves 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. Kline, 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 appearаnce,” contesting personal jurisdiction. Id. at ¶ 4. On special action,
this court determined that the superior court had personal jurisdiction over
¶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. LikeAriz. 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 hаs 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).
¶30 Under
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.
¶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 оf 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
3. The Court Did Not Err by Granting a Default Judgment Against Dodev.
¶33 Next, Dodev argues that the superior court deniеd 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 aсtion. See DVM Co. v. Stag Tobacconist, Ltd., 137 Ariz. 466, 468 (1983) (attorney‘s fees not authorized in eviction actions under previous version of
¶35 “It is a generally accepted rule that attorney‘s fees are not recoverable unless they are expressly provided for either by statute or contraсt.” 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
agreement was not intended to include attorney‘s fees for a commercial
¶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
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
ATTORNEY‘S FEES AND COSTS ON APPEAL
¶37 The Bank requests this court to award its attorney‘s fees on appeal pursuant to
¶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 clаim for fees under the purview of
relationship he may have had with the Bank prior to that sale. Therefore,
¶39 Regarding ARCAP 25, “[w]e impose sanctions under
¶40 The Bank has likewise failed to provide support or argument for its contention that
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
CONCLUSION
¶42 For the foregoing reasons, we affirm the judgment.
AMY M. WOOD Clerk of the Court
FILED: JT
Notes
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.
See also Morgan v. Cont‘l Mortg. Inv‘rs, 16 Ariz. App. 86, 91 (1971) (interpretingA. In a forcible entry or forcible detainer action originally commenced in the superior сourt, 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.