Barlage v. Valentine

110 P.3d 371, 210 Ariz. 270, 450 Ariz. Adv. Rep. 10, 2005 Ariz. App. LEXIS 59
Court of Appeals of Arizona·Decided April 27, 2005·No. 2 CA-CV 2004-0127·Published·Cited by 33 cases

Opinion

OPINION

PELANDER, Chief Judge.

¶ 1 In this contract action, appellant Dale Barlage contends the trial court erred in vacating the default judgment entered against appellee Leigh Valentine. Because we conclude the basis for the trial court’s ruling was not completely sound, we reverse the order vacating the default judgment and remand the ease for further proceedings.

BACKGROUND

¶ 2 Appellant Dale Barlage filed this action against Valentine Cosmetics, L.L.C. and Leigh Valentine in June 2003. 1 Barlage attempted to serve the out-of-state defendants in two ways: by mail and publication. Pursuant to Rule 4.2(e), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, he sent the summons and complaint by certified mail to the Dallas, Texas, address listed on Valentine’s Texas driver’s license. That address, which listed a suite number, was located in a branch of The UPS Store, a commercial mail-receiving agency (CMRA). Barlage also published the summons under Rule 4.2(f), averring that Valentine was “[ajvoiding service of process.”

¶ 3 When neither Valentine Cosmetics nor Valentine filed an answer, Barlage applied for and obtained an entry of default. In November 2003, after a default hearing at which Barlage testified, a default judgment in the amount of $784,000 was entered in his favor against Valentine and Valentine Cosmetics. Valentine moved to set aside the judgment, arguing that she had never been served with the summons and complaint. 2 The trial court granted the motion, stating that although Valentine “was likely evading service,” Barlage’s “efforts to serve her under Rule 4.2(f) and Rule 4.2(e) ... have failed.”

DISCUSSION

¶ 4 Proper, effective service on a defendant is a prerequisite to a court’s exercising personal jurisdiction over the defendant. Koven v. Saberdyne Sys., Inc., 128 Ariz. 318, 321, 625 P.2d 907, 910 (App.1980) (“Proper service of process is essential for the court to have jurisdiction over the defendant.”); Kadota v. Hosogai, 125 Ariz. 131, 134, 608 P.2d 68, 71 (App.1980) (“[T]he law is clear that a judgment is void if the trial court did not have jurisdiction because of a lack of proper service.”). Barlage contends he properly served Valentine and, therefore, the trial court had personal jurisdiction and erred in *273 vacating the default judgment entered against her. He maintains that, contrary to the trial court’s ruling, he properly served Valentine with the summons by publication and by certified mail under Rule 4.2, Ariz. R. Civ. P.

¶ 5 We will not disturb an order vacating a default judgment unless a clear abuse of discretion is shown. Cockerham v. Zikratch, 127 Ariz. 230, 233, 619 P.2d 739, 742 (1980). But, “[s]ome legal justification for the vacation of judgment must exist,” and vacating a default judgment without legal grounds is an abuse of discretion. Id. We therefore consider the grounds on which the trial court vacated the default judgment.

I. Service by Publication

¶6 Barlage first argues the trial court erred in determining that service of the summons by publication was inadequate under Rule 4.2(f). In the affidavit he filed to show why he had used publication, Barlage stated that Valentine had been “[ajvoiding service.” He further stated that Valentine’s residence was unknown, despite “a diligent search to find out,” and that his search had “failed to reveal any information that might lead to knowledge” of that.

¶ 7 Citing Sprang v. Petersen Lumber, Inc., 165 Ariz. 257, 798 P.2d 395 (App.1990), the tidal court stated that “a finding of due diligence prior to service by publication is a jurisdictional prerequisite.” The court found that Barlage had produced evidence that, “even if [he] had conducted a due diligence search and set forth those facts in [his] affidavit, [he] likely would not have been able to locate the residence of ... Valentine.” But the court ruled that Barlage’s affidavit of due diligence, which failed to set forth any of the due diligence measures he had taken, was insufficient. 3

¶ 8 Rule 4.2(f) permits service by publication when an out-of-state defendant has “avoided service of process.” The rule also requires that the party who serves pleadings by publication “shall file an affidavit showing the manner and dates of publication and mailing, and the circumstances warranting utilization of the procedure authorized by this subpart which shall be prima facie evidence of compliance herewith.” Id. The affidavit must “set[ ] forth facts indicating [the serving party] made a due diligent effort to locate an opposing party to effect personal service.” Sprang, 165 Ariz. at 261, 798 P.2d at 399; see also Omega II Inv. Co. v. McLeod, 153 Ariz. 341, 342, 736 P.2d 824, 825 (App.1987) (finding of due diligence before service by publication is jurisdictional prerequisite). Barlage’s affidavit failed to set forth any facts showing a due diligence effort. It merely asserted in conclusory fashion that such an effort had been made and, therefore, was insufficient. See Sprang, 165 Ariz. at 261, 798 P.2d at 399.

¶ 9 Barlage contends, however, that “[t]here is no dispute that plaintiff Barlage’s counsel exercised due diligence in attempting to locate ... Valentine prior to ... service by publication.” And, he argues, a plaintiff is not required to “rely exclusively on the affidavit supporting service of process by publication.” Rather, the court should consider “the entire record” in determining whether Valentine had avoided service, making service by publication valid. In Hirsch v. *274 National Van Lines, Inc., 136 Ariz. 304, 666 P.2d 49 (1983), our supreme court stated that service by registered mail on an out-of-state corporate defendant under former Rule 4(e)(1) and (2) could be valid even though the requisite affidavit had not stated the circumstances warranting the procedure that had been used. But, the Hirsch court found that “there was evidence available to the judge at the time the motion to set aside was heard” indicating that the circumstances had in fact existed. Id. at 308, 666 P.2d at 53.

¶ 10 Here, in contrast, the trial court stated that Barlage had merely introduced evidence that “if [he] had conducted” a due diligence search, he probably would not have been able to locate Valentine.

Free access — add to your briefcase to read the full text and ask questions with AI

Barlage v. Valentine, 110 P.3d 371, 210 Ariz. 270, 450 Ariz. Adv. Rep. 10, 2005 Ariz. App. LEXIS 59 (Ark. Ct. App. 2005).

110 P.3d 371 (Barlage v. Valentine) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

In Re Termination of Parental Rights as to D.S.
Court of Appeals of Arizona, 2026
In Re Term of Parental Rights as to B.W.
Arizona Supreme Court, 2025
Tax Lein v. Beitman
Court of Appeals of Arizona, 2024
Zhao v. Tradego Forex Exchange
W.D. Washington, 2024
Arapaho v. Searle
Court of Appeals of Arizona, 2023
Melendez v. Melancon
Court of Appeals of Arizona, 2022
James M. v. Silvia M.
Court of Appeals of Arizona, 2021
MacLean v. Newgioco
Court of Appeals of Arizona, 2021
Bank of Ny v. Dodev
433 P.3d 549 (Court of Appeals of Arizona, 2018)
Ruffino v. Lokosky
425 P.3d 1108 (Court of Appeals of Arizona, 2018)
Monster Heavy Haulers, LLC v. Goliath Energy Services, LLC
2016 ND 176 (North Dakota Supreme Court, 2016)
Hahne v. Az Air Time
Court of Appeals of Arizona, 2016
State of Arizona v. Ronald James Sisco II
359 P.3d 1 (Court of Appeals of Arizona, 2015)
McA Financial Group, Ltd. v. Enterprise Bank & Trust
341 P.3d 1161 (Court of Appeals of Arizona, 2014)
Diana R. v. Dcs, I.E.
Court of Appeals of Arizona, 2014
Blair v. Burgener
245 P.3d 898 (Court of Appeals of Arizona, 2010)