Arizona Real Estate Inv., Inc. v. Schrader – 11/9/2010

November 18, 2010

Arizona Court of Appeals Division One Holds That Post and Mail Service of a Summons and Complaint is Improper in a Forcible Detainer Action.

Arizona Real Estate purchased a home at a trustee’s sale which was occupied by Edward Schrader, the previous owner.  Arizona Real Estate filed a forcible detainer action pursuant to A.R.S. § 12-1173.01.  The record contained a single affidavit of service, stating that the process server posted the summons and complaint “in a conspicuous place” and sent copies to Schrader by certified mail.  Schrader did not appear at a hearing and the superior court instructed counsel for Arizona Real Estate to lodge a judgment.

Schrader then made a special appearance contesting the judgment on the grounds that service had been improper.  At a hearing, the superior court ruled that Schrader had been served properly in accordance with Rule 5(f) of the Rules of Procedure for Eviction Actions.  Schrader then defended the eviction action at trial, where he was found guilty of forcible detainer.  The superior court awarded costs and fees to Arizona Real Estate, and Schrader appealed.

The Court of Appeals rejected Arizona Real Estate’s argument that Schrader waived the improper service argument by entering a general appearance.  Adverse rulings on jurisdictional questions may be appealed even if the case proceeds to a judgment on the merits.

The Court then held that the superior court erred in ruling that post and mail service to Schrader was proper.  Post and mail service is permitted under Rule 5(f) of the Rules of Procedure for Eviction Actions only for special detainer actions under the Arizona Residential Landlord and Tenant Act brought pursuant to A.R.S. § 33-1377.  For a forcible detainer action brought pursuant to A.R.S. §§ 12-1171 et. seq., Rule 5(f) requires personal service “as provided by Rule 4.1 or 4.2 of the Arizona Rules of Civil Procedure.”

The Court also rejected the superior court’s apparent attempt to validate the post and mail service by authorizing it as an alternative service under Rule 4.1(m) of the Arizona Rules of Civil Procedure.  The Court noted that Rule 4.1(m) grants judges authority to authorize alternative service only when personal service “proves impracticable.”  The record in this case did not indicate that Schrader evaded service, that multiple attempts at service were made, or that any other facts demonstrated that personal service was impracticable.  The need for “speedy and quick determinations of forcible detainer actions” is a legitimate concern, but not enough by itself to establish that personal service is impracticable and alternative service is justified.

Because a judgment is void when service is defective, the Court vacated the judgment of the superior court, including the award of attorneys’ fees against Schrader.

Judge Downie wrote the opinion; Judges Portley and Orozco concurred.