01/10/2013 — LC2012000414 SOUTH MOUNTAIN RESIDENTIAL ASSOCIATION, THE POINTE 01/10/2013 COMMISSIONER MYRA HARRIS View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Filed ***
01/11/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2012-000414-001 DT
01/10/2013
Docket Code 023
Form L512
Page 1
CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton
Deputy
THE POINTE SOUTH MOUNTAIN
RESIDENTIAL ASSOCIATION
CHAD A HESTER
v.
JOSEPH WEIRATHER (001)
BEN J HIMMELSTEIN
REMAND DESK-LCA-CCC
SOUTH MOUNTAIN JUSTICE COURT
MINUTE ENTRY
Lower Court Case No. CC2011–032296RC.
Defendant-Appellant Joseph Weirather (Defendant) has provided this Court with a China
Doll Statement and a request for his attorneys’ fees and costs. Appellee, The Pointe South
Mountain Residential Association, has responded to Defendant’s claimed attorneys’ fee amounts
and Defendant has replied to Appellee’s Response. This Court has carefully reviewed (1) the
claimed amounts and Affidavit In Support Of Application For Attorneys’ Fees; (2) the
Application For Attorneys’ Fees; (3) the Statement of Costs; (4) the Response to Joseph
Weirather’s Application For Attorneys’ Fees; (5) the Reply In Support Of Application For
Attorneys’ Fees; well as (6) this Court’s prior ruling where the applicability and reasons for
attorneys’ fees were discussed.
This Court finds attorneys’ fees and costs are warranted as follows:
Costs $ 358.00
Attorneys’ fees $3,000.00
IT IS THEREFORE ORDERED awarding Defendant (1) attorneys’ fees in the amount of
$ 3,000.00; and (2) costs of $358.00.
IT IS FURTHER ORDERED that Defendant shall receive interest on these amounts at the
legal rate of 4.25% from the date of judgment until paid in full.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.
/s/ Myra Harris
THE HON. MYRA HARRIS
Judicial Officer of the Superior Court
011020131330
03/11/2013 — LC2012000414 SOUTH MOUNTAIN RESIDENTIAL ASSOCIATION, THE POINTE 03/11/2013 COMMISSIONER MYRA HARRIS View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
03/12/2013 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2012-000414-001 DT
03/11/2013
Docket Code 905
Form L000
Page 1
CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton
Deputy
THE POINTE SOUTH MOUNTAIN
RESIDENTIAL ASSOCIATION
CHAD A HESTER
v.
JOSEPH WEIRATHER (001)
JOSEPH WEIRATHER
4747 E ELLIOT ROAD #29-412
PHOENIX AZ 85044
BEN J HIMMELSTEIN
REMAND DESK-LCA-CCC
SOUTH MOUNTAIN JUSTICE COURT
MINUTE ENTRY
Lower Court Case No. CC2011–032296 RC.
The Court is in receipt of Defendant-Appellant’s undated letter with a copy of this Court’s
October 30, 2012 ruling attached. The Court cannot consider this letter for the following reasons:
1. There is no indication on the letter that a copy has been mailed to all opposing/interested
parties/counsel, as required by Rule 5(a), Arizona Rules of Civil Procedure. The Court
cannot consider ex parte communications.
2. There is no evidence that the original letter has been filed with the Clerk of the Court in
accordance with Rule 5(g), Arizona Rules of Civil Procedure and Local Rule 2.19.
For the foregoing reasons,
IT IS ORDERED rejecting the letter with no action taken.
FILED: Letter
09/24/2012 — LC2012000414 SOUTH MOUNTAIN RESIDENTIAL ASSOCIATION, THE POINTE 09/24/2012 THE HON. CRANE MCCLENNEN View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
09/25/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2012-000414-001 DT
09/24/2012
Docket Code 504
Form L000
Page 1
CLERK OF THE COURT
THE HON. CRANE MCCLENNEN
K. Waldner
Deputy
THE POINTE SOUTH MOUNTAIN
RESIDENTIAL ASSOCIATION
CHAD A HESTER
v.
JOSEPH WEIRATHER (001)
BEN J HIMMELSTEIN
COMM. M. HARRIS
REMAND DESK-LCA-CCC
SOUTH MOUNTAIN JUSTICE COURT
CIVIL
RECORD APPEAL ASSIGNMENT - NO ORAL ARGUMENT
Lower Court Case No. CC2011–032296
Memoranda having been filed in the above-mentioned appeal, and no request for oral
argument having been made, or the request having been denied,
IT IS ORDERED assigning this appeal on September 21, 2012, to Commissioner Myra
Harris for determination of the appeal within sixty (60) days from this date based upon the record of
the proceedings and the parties' memoranda, pursuant to Rule 9.9, Maricopa County Superior Court
Local Rules of Practice.
10/30/2012 — LC2012000414 SOUTH MOUNTAIN RESIDENTIAL ASSOCIATION, THE POINTE 10/30/2012 COMMISSIONER MYRA HARRIS View Minute Entry ↑ top
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- Minute Source
Michael K. Jeanes, Clerk of Court
*** Filed ***
11/01/2012 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2012-000414-001 DT
10/30/2012
Docket Code 512
Form L512
Page 1
CLERK OF THE COURT
COMMISSIONER MYRA HARRIS
J. Eaton
Deputy
THE POINTE SOUTH MOUNTAIN
RESIDENTIAL ASSOCIATION
CHAD A HESTER
v.
JOSEPH WEIRATHER (001)
BEN J HIMMELSTEIN
REMAND DESK-LCA-CCC
SOUTH MOUNTAIN JUSTICE COURT
RECORD APPEAL RULING / REMAND
Lower Court Case No. CC2011–032296 RC.
Defendant Appellant Joseph Weirather (Defendant) appeals the South Mountain Justice
Court’s determination granting Plaintiff a default judgment. Defendant contends the trial court
erred. For the reasons stated below, the court reverses the trial court’s judgment.
I. FACTUAL BACKGROUND.
On February 16, 2011, Plaintiff filed a breach of contract complaint against Defendant
alleging he breached his contractual obligation to the Association by failing to pay (1) his dues
and fine assessments; (2) late charges; (3) interest; and (4) related costs of collection. Plaintiff
claimed (1) $6,897.73 in past due amounts; (2) future maintenance assessments at the rate of
$110.00 per month; (3) interest at the rate of 10%; plus (4) attorney fees.
Plaintiff served Defendant by publication after unsuccessfully attempting to serve him at his
prior address on South 56th Street, Phoenix, Arizona. On appeal, Defendant asserted he left the
residence in June, 2010, and moved from Phoenix to Mesa. Defendant also claimed (1) he
changed his address to his Mesa address at the time of his move; (2) the Arizona Department of
Transportation, Motor Vehicle Division records, indicated his Mesa address; and (3) his lender
foreclosed upon the 56th Street Phoenix residence on June 18, 2010—approximately six months
before he was served by publication. Defendant claimed he never received notice of the lawsuit
and never received any documents pertaining to the lawsuit.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2012-000414-001 DT
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Page 2
On October 27, 2011, Plaintiff received a default judgment against Defendant for delinquent
HOA fees and assessments as well as for attorney fees that included charges for months after the
home had been foreclosed. Defendant asserted (1) the amount claimed was in error because
much of the debt had been discharged in his prior bankruptcy; and (2) the judgment should be set
aside because he was not properly served. The trial court did not set the default judgment aside.
In contrast, Plaintiff asserted it met its due diligence standard before serving Defendant by
publication and referred to a hearing the trial court held on July 28, 2011. Plaintiff did not
provide this Court with either an audio CD or a written transcript for this hearing. Plaintiff also
asserted Defendant was precluded from raising claims about Defendant’s bankruptcy discharge
as Plaintiff was not listed as a creditor on Defendant’s bankruptcy petition and Plaintiff therefore
had no notice of the bankruptcy discharge. To support Plaintiff’s position, Plaintiff included a
Return of Non-Service prepared by Process Server Scott Decker. The Return of Non- Service
indicated the following:
I, Scott Decker, do hereby affirm that on the 28th day of February, 2011 [sic] at
5:00 pm, I:
NON-SERVED the Summons and Complaint because all reasonable inquiries
suggest the defendant moved to an undetermined address.
Additional information pertaining to this Service:
2/18/2011 5:35 pm No answer.
2/23/2011 4:00 pm
No answer. Complex manager says defendant does not
currently reside within complex. He did reside there at one time, but moved
leaving no forwarding address, September, 2007.
The court file does not reflect that Plaintiff filed a due diligence statement before
proceeding to serve Defendant by publication although he did file a Notice of Service By
Publication on May 13, 2011. According to Plaintiff, the trial court held a hearing on July 28,
2011, where due diligence was discussed. The trial court record does not reflect that an audio
recording of this hearing was made and/or retained. Instead, the trial court record indicates that
the only records are the pleadings filed in the case and the July 28, 2011, hearing which lasted
one minute.
After the appellate memoranda were filed, Defendant filed an Appellant’s Motion To
Supplement—Or, Alternatively—Reply Memorandum informing the Court about the Bankruptcy
Court’s Order precluding Plaintiff from seeking to collect or maintain a judgment that included
pre-petition portions of debt. Thereafter, Plaintiff filed a Notice of Partial Satisfaction and/or
Amendment of Default Judgment reducing the principal amount of the judgment by $2,588.29 to
account for the pre-petition debt that was discharged in Defendant’s bankruptcy proceeding.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2012-000414-001 DT
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Docket Code 512
Form L512
Page 3
Defendant filed a timely appeal. Plaintiff filed a responsive memorandum. This Court has
jurisdiction pursuant to ARIZONA CONSTITUTION Art. 6, § 16, and A.R.S. § 12–124(A).
II. ISSUES:
A.
Did The Trial Court Err In Refusing To Set The Default Aside.
Standard of Review
Defendant appeals from the trial court’s denial of his motion to set aside the default
judgment Plaintiff obtained. This Court first notes that in reviewing a trial court’s ruling on a
motion to set aside a default judgment, this Court must view the facts in the light most favorable
to sustaining the trial court’s ruling. Blair v. Burgener, 226 Ariz. 213, 215 ¶ 2, 245 P.3d 898, 900,
¶ 2 (Ct. App. 2010). Appellate courts review a trial court’s denial of a motion to set aside a
default judgment for an abuse of discretion. Id. 226 Ariz. at 216, ¶ 7, 245 P.3d at 901, ¶ 7.
However, “a trial court, ‘must vacate … a [void] judgment [,] … [and] a party seeking relief
from a void judgment need not show that their [sic] failure to file a timely answer was excusable,
that they acted promptly…, or that they had a meritorious defense.’ ” Id.
Service By Publication
Defendant raised procedural issues about his ability to have notice and an opportunity to be
heard before the trial court granted Plaintiff’s Default Judgment. As stated earlier, Defendant was
served by publication after Plaintiff made two attempts to serve him at his prior address. Plaintiff
provided no Affidavit of Due Diligence and no explanation as to what investigation—if any—
Plaintiff undertook to locate Defendant’s current address. According to Defendant, at the time he
was served, he had been out of the S. 56th Street home for over six months and it had been over
six months since the home was foreclosed. Defendant asserted his new address was available
through the Motor Vehicle Department, the utility company, and voter registration. Defendant
provided records from these places indicating his address. If Plaintiff—or Plaintiff’s legal
representatives—looked for a new address, they failed to attest to this search. Therefore, Plaintiff
failed to comply with the mandates of A.R.C.P., Rule 4.1 (m) which states in relevant part:
The party or officer making service shall file an affidavit showing the
manner and dates of the publication and the mailing, and the circumstances
warranting the utilization of the procedure authorized by this subpart, which shall
be prima facie evidence of compliance herewith.
In Sprang v. Petersen Lumber, Inc., 165 Ariz. 257, 798 P.2d 395 (Ct. App. 1990) the Arizona
Court of Appeals discussed service of process by publication following two attempts at personal
service. In Sprang v. Petersen Lumber, Inc., id., a copy of the summons and complaint was (1)
mailed to a post office box as listed as the address on Mr. Sprang’s tax records and (2) attempted
to be served at Mr. Sprang’s home which was found to be vacant. Thereafter, Mr. Sprang was
served by publication. The Plaintiff filed an affidavit of service by publication and indicated (1)
Mr. Sprang’s residence was unknown; and (2) Plaintiff exercised due diligence in trying to
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2012-000414-001 DT
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Docket Code 512
Form L512
Page 4
ascertain Mr. Sprang’s whereabouts. The Court of Appeals found this affidavit was insufficient.
Id., 165 Ariz. at 261, 798 P.2d at 399. The Court of Appeals stated:
Before resorting to service by publication, a party must file an affidavit setting
forth facts indicating it made a due diligent effort to locate an opposing party to
effect personal service. Omega II Investment Co. v. McLeod, 153 Ariz. 341, 342,
736 P.2d 824, 825 (App. 1987); Rule 4(e) (3),1 Arizona Rules of Civil Procedure.
A “due diligent effort” requires such pointed measures as an examination of
telephone company records, utility company records, and records maintained by
the county treasurer, county recorder, or similar record keepers.
Id., 165 Ariz. at 261, 798 P.2d at 399. The Court of Appeals continued and held the record on
appeal indicated the postal service records, the utility company records, and the records at the
Navaho County Assessor’s office would have revealed information about Mr. Sprang’s current
address.
The Plaintiff in Sprang, id., did more due diligence than was done by the Plaintiff in the
case before this Court. Here, the Plaintiff only sent a process server out twice. Plaintiff failed to
file an Affidavit of Due Diligence expressing that Plaintiff even tried to use due diligence and
locate Defendant. As with Sprang, id., there was sufficient information available from which
Plaintiff—with the exercise of due diligence—could have located Defendant’s current address.
The Court of Appeals commented on the need for “heightened” due diligence when serving
by publication in Blair v. Bergener, id., 226 Ariz. at 218, ¶ 14, 245 P.3d at 903 ¶ 14. In addition,
in Brennan v. Western Sav. And Loan Ass’n, 22 Ariz. App. 293, 296 526 P.2d 1248, 1251 (Ct.
App. 1974) the Court of Appeals held “Due diligence in trying to serve the summons personally
is required before jurisdiction through publication will be granted.” The Court of Appeals
continued and ruled: “It is not enough to state that residence is unknown without setting forth the
efforts made to locate the party.” Id. Plaintiff fell short of this heightened due diligence
requirement. Plaintiff failed to file his affidavit of due diligence and this Court doubts Plaintiff
presented much in the way of due diligence testimony in the unrecorded July 28, 2011, hearing
that lasted for only one minute.
Because Defendant was not properly served, he (1) did not have an opportunity to
challenge Plaintiff’s claims and (2) was deprived of due process. Due process requires each side
to have a meaningful opportunity to be heard. Huck v. Haralambie, 122 Ariz. 63, 65, 593 P.2d
286, 288 (1979).
An elementary and fundamental requirement of due process in any proceed-
ing which is to be accorded finality is notice reasonably calculated, under all cir-
cumstances, to apprise interested parties of the pendency of the action and afford
them an opportunity to present their objections.
1 This is a predecessor to rule 4.1 (m).
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2012-000414-001 DT
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Docket Code 512
Form L512
Page 5
Pioneer Federal Sav. Bank v. Driver, 166 Ariz. 585, 588, 804 P.2d 118, 121 (Ct. App. 1990),
quoting from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652,
657 (1950).
The Arizona Court of Appeals held in Sprang, id., 165 Ariz. at 262, 798 P.2d at 400, (1) a
finding of due diligence prior to service by publication is a jurisdictional requirement; and (2) if
an affidavit failed to indicate due diligence was exercised to locate the defendant, any default
judgment is void on its face for lack of jurisdiction. Here, Plaintiff failed to demonstrate due
diligence before serving by publication. Because this is a jurisdictional requirement, the default
judgment is void. Therefore, the trial court should have set it aside.
B. Is Defendant Entitled To His Attorneys’Fees On Appeal.
Defendant requested attorneys’ fees for his appeal. This Court finds an award of attorneys’
fees is warranted. Generally, “[t]he trial court has broad discretion in determining whether to
award attorneys’ fees under A.R.S. section 12–341.01. State Farm Mut. Auto Ins. Co. v.
Arrington, 192 Ariz. 255, 963 P.2d 334 ¶27 (Ct. App. 1998). Here, Defendant prevailed on his
appeal. In analyzing a request for attorneys’ fees, this Court notes the purpose behind the
attorneys’ fees statute is to mitigate the burden for the expense of litigation. Fousel v. Ted
Walker-Mobile Homes, Inc. 124 Ariz. 126, 602 P.2d 507 (Ct. App. 1979); Associated Indem.
Corp., v. Warner, 143 Ariz. 567, 694 P.2d 1181 (1985). In the current case, this Court finds it
appropriate that Defendant’s burden be mitigated. Defendant was not properly served and was
deprived of his opportunity to contest Plaintiff’s actions. Plaintiff asserted claims that were
barred by Defendant’s earlier bankruptcy and—when informed of the bankruptcy discharge—
steadfastly refused to modify its judgment until the Bankruptcy Court ordered it to do so. In
addition, Defendant offered Plaintiff the opportunity to negotiate any alleged debt and notified
Plaintiff about the problems with Plaintiff’s lack of due diligence. Plaintiff refused to budge.
Plaintiff could have avoided this appeal but chose not to. Plaintiff should be responsible for the
fees it caused Defendant to incur.
The Arizona Supreme Court established factors to consider before awarding attorney fees.
Associated Indemnity Corporation, id., 143 Ariz. at p. 570, 694 P.2d at 1184. These factors
included (1) the merits of the claim presented by the unsuccessful party; (2) if the litigation could
have been avoided or settled; (3) whether assessing fees against the unsuccessful party would
cause extreme hardship; and (4) whether the successful party prevailed with respect to all the
relief sought. The Arizona Supreme Court then held:
We also believe that the trial court should consider whether the award in any
particular case would discourage other parties with tenable claims or defenses
from litigating or defending legitimate contract issues for fear of incurring
liability for substantial amounts of attorney’s fees.
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
LC2012-000414-001 DT
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Docket Code 512
Form L512
Page 6
Id., 143 Ariz. at p.570, 694 P.2d at 1184. [Citation omitted.] This Court will examine the factors
established in Associated Indemnity Corporation, id. First, Defendant presented a meritorious
claim. Second, Plaintiff, upon being informed of the problems with the original service, should
or could have examined the Affidavit of Service and determined if Defendant was properly
served. Because Plaintiff ignored the required due diligence affidavit in the initial case and then
compounded this error by discounting Defendant’s claims about improper service, the litigation
could not have been avoided. Third, this Court does not know if assessing fees against Plaintiff
would cause Plaintiff additional hardship. However, this Court notes Plaintiff accepted a fee
award for its attorneys’ fees when it believed it was the successful party. Fourth, this Court does
not believe that awarding attorneys’ fees to Defendant would compromise the ability of future
litigants to either bring or defend a claim about improper or ineffective service. Finally,
Defendant prevailed on his issue(s) with this Court as (1) this Court set aside Plaintiff’s default
judgment; (2) found the service by publication did not meet due process standards as there was
no statement of due diligence; and (3) did not need to address Defendant’s claims about pre-
petition debt as any issue about pre-petition debt was moot based on the Bankruptcy Court
ruling.
III. CONCLUSION.
Based on the foregoing, this Court concludes the South Mountain Justice Court erred when
it failed to set aside the default judgment Plaintiff obtained. This Court also concludes Defendant
is entitled to his reasonable attorneys’ fees for this appeal. Defendant shall provide this Court
with a China Doll statement in accordance with the mandates of the requirements of Schweiger v.
China Doll, 138 Ariz. 183, 673 P.2d 927 (Ct. App. 1983).
IT IS THEREFORE ORDERED reversing the judgment of the South Mountain Justice
Court.
IT IS FURTHER ORDERED remanding this matter to the South Mountain Justice Court
for all further appropriate proceedings.
IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court.
/s/ Myra Harris
THE HON. MYRA HARRIS
Judicial Officer of the Superior Court
103120120710
