Master Financial, Inc. v. Woodburn

• Court: Arizona Court of Appeals
• Writing for the Court: GARBARINO.
• Citation: Master Financial, Inc. v. Woodburn, 90 P.3d 1236, 208 Ariz. 70 (Ariz. App. 2004)
• Decision Date: 27 May 2004
• Docket Number: No. 1 CA-SA 04-0052.,1 CA-SA 04-0052.
• Parties: MASTER FINANCIAL, INC., Petitioner, v. The Honorable R. Jeffrey WOODBURN, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Michael L. Hillman, Real Party in Interest.

90 P.3d 1236

208 Ariz. 70

MASTER FINANCIAL, INC., Petitioner, v. The Honorable R. Jeffrey WOODBURN, Commissioner of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Michael L. Hillman, Real Party in Interest.

No. -0052.

Court of Appeals of Arizona, Division 1, Department C.

May 27, 2004.

As Amended June 7, 2004.

Miles, Bauer, Bergstrom & Winters, LLP By Jeremy T. Bergstrom, Henderson, NV, Attorneys for Petitioner.

GARBARINO, Judge.

¶ 1 We hold that a plaintiff pursuing a money judgment against a defendant whose residence is unknown but whose last known residence was within the state, or who has avoided service, can serve the defendant by publication in accordance with the requirements of Rule 4.1(n) of the Arizona Rules of Civil Procedure.

¶ 2 Petitioner Master Financial, Inc. (MFI) seeks special action relief from the denial of its motion for default judgment.¹ MFI argues that the trial court erred by concluding that money judgments were not available in cases where service was effectuated by publication, except in cases involving absent motorists. Specifically, MFI contends that Rule 4.1(n) does not require personal service to obtain a money judgment against Hillman. For the following reasons, we accept jurisdiction and grant relief.

FACTUAL AND PROCEDURAL HISTORY

¶ 3 This special action arises from a civil action brought by MFI against Hillman seeking recovery of monetary damages resulting from a default and a breach of a promissory note. MFI attempted personal service upon Hillman on five separate occasions between December 2002 and January 2003 at Hillman's last known address in Phoenix, Arizona. After concluding that personal service was not possible, MFI obtained an order from the trial court authorizing service by publication. See Ariz. R. Civ. P. 4.1(n).

¶ 4 After the time for filing a responsive pleading had expired, MFI filed an application for entry of default with the clerk of the court. See Ariz. R. Civ. P. 55(a). In October 2003, MFI moved for default judgment against Hillman. See Ariz. R. Civ. P. 55(b)(1). The trial court denied the motion, stating that money damages are not available in cases where service of process was achieved through publication.

JURISDICTION

¶ 5 Special action jurisdiction is appropriate when there is no "equally plain, speedy, and adequate remedy by appeal." Ariz. R.P. Spec. Act. 1(a); Ariz.Rev.Stat. § 12-120.21(A)(4) (2003); see also State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4, 35 P.3d 82, 84 (App.2001). This Court has previously acknowledged the distinction between a default judgment from the court and an entry of default by the clerk. See Sullivan & Brugnatelli Adver. Co., Inc. v. Century Capital Corp., 153 Ariz. 78, 79, 734 P.2d 1034, 1035 (App.1986); see also Ariz. R. Civ. P. 55(a), (b). Although an order setting aside a default judgment is appealable as a special order after judgment, see A.R.S. § 12-2101(C) (2003), an order vacating entry of default is not appealable. Sanders v. Cobble, 154 Ariz. 474, 475-76, 744 P.2d 1, 2-3 (1987) (citing Richas v. Superior Court, 133 Ariz. 512, 513, 652 P.2d 1035, 1036 (1982)). Thus, review by special action proceeding is appropriate. Richas, 133 Ariz. at 513, 652 P.2d at 1036.

DISCUSSION

I. The History of Service of Process by Publication

¶ 6 Prior to 1991, the rules governing service of process were found in Rules 4(e)(1) and 4(e)(3) of the Arizona Rules of Civil Procedure. Rule 4(e)(3) provided, in pertinent part, that

[w]here by law personal service is not required, and a person is subject to service under Section 4(e)(1), such service may be made by either of the methods set forth in Section 4(e)(2) or by publication.

(Emphasis added.) Interpreting this rule, this Court and the Arizona Supreme Court have held that service by publication is not proper for in personam actions. See Mervyn's, Inc. v. Superior Court, 144 Ariz. 297, 300, 697 P.2d 690, 693 (1985); Price v. Sunmaster, 27 Ariz.App. 771, 775, 558 P.2d 966, 970 (1976); Ticey v. Randolph, 5 Ariz.App. 136, 137, 424 P.2d 178, 179 (1967); Knight v. Mewszel, 3 Ariz.App. 295, 297, 413 P.2d 861, 863 (1966), overruled by Walker v. Dallas, 146 Ariz. 440, 706 P.2d 1207 (1985).

¶ 7 Beginning with Knight in 1966, courts have construed the phrase "where by law personal service is not required" to require personal service for money judgments. 3 Ariz.App. at 297, 413 P.2d at 863. The issue in Knight was whether service of process by publication upon a resident defendant was sufficient to confer jurisdiction upon the court to enter a money judgment against the defendant. Id. at 295, 413 P.2d at 861. This Court held that publication was insufficient and, thus, the lower court lacked jurisdiction to enter judgment against the defendant. Id. at 297, 413 P.2d at 863.

¶ 8 One year later, the Ticey court was asked to abandon Knight in favor of the "minimum contacts" rule adopted by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Ticey, 5 Ariz.App. at 138, 424 P.2d at 180. This Court declined to overrule Knight, noting that to do so would permit service by publication under this rule any time there were minimum contacts and the defendant was a non-resident or any other type of defendant specified in Rule 4(e)(1). Id. This Court also noted that the rules governing service by publication should be strictly construed. Id.

¶ 9 In 1976, the Price court held that "in order to obtain a judgment in personam, personal service on the defendant is required." 27 Ariz.App. at 775, 558 P.2d at 970. The use of service by publication has traditionally been limited to in rem or quasi in rem actions. Id.

¶ 10 In 1985, the supreme court in Mervyn's reaffirmed this rule, stating that "where the action is to obtain a money judgment against a defendant, traditionally termed an in personam judgment, personal service is required." 144 Ariz. at 300,697 P.2d at 693 (holding that garnishment proceedings are considered quasi in rem and, thus, service by publication is sufficient to satisfy minimum due process requirements). Later that same year, the supreme court issued its decision in Walker. Citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950),Walker limited publication under Rule (4)(e)(3) to cases involving absent non-resident motorists if the insurer is on notice of the suit. 146 Ariz. at 445,706 P.2d at 1212.

¶ 11 In Saucedo v. Engelbrecht, however, this Court seemed to depart from the traditional rule regarding service by publication. 149 Ariz. 18, 716 P.2d 79 (App.1986). This Court reiterated the holding in Walker that service by publication is sufficient to confer in personam jurisdiction over a non-resident motorist if that motorist cannot be served personally and if the insurer has notice. Id. at 19, 716 P.2d at 80. However, this Court went on to hold that "[w]e see no constitutional distinction that would prohibit service by publication over a resident, where due diligence is exercised and he cannot be found. A finding of due diligence is a jurisdictional prerequisite." Id. This Court found that the plaintiff had exercised due diligence to allow service by publication on the defendant. Id.

¶ 12 Petitioner relies, in part, on the Saucedo holding in support of his contention that service by publication was proper in this case to support a default judgment. Despite this Court's apparent departure in Saucedo from the traditional rule of not allowing service by publication for a money judgment, we believe Rule 4.1(n) and the accompanying state bar committee note to be more persuasive because the Saucedo court relied on the now outdated Rule 4(e)(3).

II. The Current Rule Governing Service by Publication

¶ 13 Rule 4.1(n), the current rule governing service by publication, states that

[w]here the person to be served is one whose residence is unknown to the party seeking service but whose last known residence address was within the state, or has avoided service of process, and service by publication is the best means practicable under the circumstances for providing notice of the institution of the action, then service may be made by publication in accordance with the requirements of this subpart.

Absent from the amended language is the phrase "where by law personal service is not required," which was contained in the previous Rule 4(e)(3). Considering that the general rule adopted in Arizona relied on this language for support, we find the absence of this language in the current rule to be instructive. Strictly construing the language of Rule 4.1(n), we conclude that the rule does not distinguish between in personam and in rem or quasi in rem actions. To be sure, the state bar committee note advises that "[t]he additional requirement that personal service not be required by law, which found its theoretical origins in the distinction between actions in personam and actions in rem, has been eliminated." Ariz. R. Civ. P. 4.1(n) cmt.

¶ 14 Moreover, the rule specifically applies to instances when residence is unknown but the last known address is within Arizona, which is likely the circumstance in the present case. Ariz. R. Civ. P. 4.1(n). In some cases, it may be impossible for the court to determine whether the defendant is a resident or non-resident. See, e.g., Mervyn's, 144 Ariz. at 300 n. 4, 697 P.2d at 693. Here, MFI has a last known address for Hillman in Arizona, but has been unable to personally serve him at this address.

III. Due Process Requirements

¶ 15 In addition to satisfying the requirements of Rule 4.1(n), a plaintiff seeking service by publication must also satisfy the due process minimums articulated in Mullane.339 U.S. at 314-15,70 S.Ct. 652. Specifically, publication satisfies due process minimum notice requirements if it is the best means of notice under the circumstances and it is...