Bank of New York Mellon v. Dodev – 11/20/2018

December 7, 2018

Arizona Court of Appeals Division One holds that dismissal without prejudice is not a final appealable order that divests superior court of jurisdiction during pendency of appeal and party may file answer without waiving appealability of the superior court’s personal jurisdiction over that party.

A bank acquired property through a trustee’s sale and brought forcible detainer actions over the occupants that it voluntarily dismissed without prejudice.  During the pendency of the occupants’ petition for review before the Supreme Court on one of the actions, the bank refiled the dismissed action.  The bank was unable to effectuate personal service despite five attempts, and the superior court granted a motion for alternative service.  The occupants appeared at a special hearing, and unsuccessfully contested the factual basis for alternative service.  The occupants also claimed that the superior court lacked jurisdiction because the appeal from a prior dismissal without prejudice was pending when the bank refiled its detainer action.  The superior court ordered occupants to file an answer, occupants did not file an answer, and the bank moved for judgment on the pleadings.  The superior court entered a default judgment against the occupants.

The occupants appealed the default judgment, and the Court of Appeals affirmed.  The Court of Appeals held that the superior court retained jurisdiction during the pendency of the occupants’ appeal to the Supreme Court because appellate jurisdiction did not arise until final determination of possession of the property, damages, attorneys’ fees and costs, and the appellate courts had not accepted jurisdiction over occupants’ appeal.  Next, the Court of Appeals held that the bank’s previous two voluntary dismissals of the detainer actions did not adjudicate the merits of those actions pursuant to Arizona Rule of Civil Procedure 41(a)(1)(B) because the eviction action rules did not incorporate Rule 41.  The Court of Appeals rejected occupants’ argument that answering the complaint would waive their jurisdictional challenge because the superior court determined it had jurisdiction prior to ordering occupants to answer thereby preserving their right to appeal.  The Court of Appeals otherwise held that the superior court properly permitted alternative service on occupants due to the “extreme difficulty” in service evidenced by the bank’s prior attempts.  Finally, the Court of Appeals rejected the bank’s request for attorney’s fees on appeal because a detainer action following a trustee’s sale does not arise out of contract.

Judge McMurdie authored the opinion; Judges Campbell and Cattani joined.