Melendez v. Melancon

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In re the Matter of:

MICHAEL A. MELENDEZ, Plaintiff/Appellant,

v.

VICTORIA MELANCON, Defendant/Appellee.

No. 1 CA-CV 21-0145
FILED 2-24-2022

Appeal from the Superior Court in Coconino County
No. S0300CV201900473
The Honorable Ted S. Reed, Judge

AFFIRMED

COUNSEL

Pangerl Law Firm, PLLC, Phoenix
By Regina M. Pangerl
Counsel for Plaintiff/Appellant

Doran Justice, PLLC, Phoenix
By Tyler H. Schwenke
Counsel for Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.

B A I L E Y, Judge:

¶1 Michael A. Melendez (“Michael”) appeals the superior court’s
order setting aside a default judgment he obtained against Victoria
Melancon (“Victoria”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Michael sued Victoria in September 2019, alleging Victoria
had taken money from his checking account. Michael filed an affidavit of
service in December 2019, stating that he had served Victoria by publication
after attempting to contact her “via [F]acebook, phone, email, and [P].[O].
Box” and attempting to locate her “using Google and virtual [Y]ellow
[P]ages.” He completed service by publication on December 5, 2019.
Victoria did not appear or answer the complaint.

¶3 Michael moved for entry of default judgment in late January
2020. The court entered default judgment on February 28, 2020. Michael
later assigned the judgment to Sharol Harris (“Sharol”), who began
collection efforts in August 2020.

¶4 Victoria appeared in the case on September 11, 2020, shortly
after Sharol served a writ of garnishment on her employer. Three months
later, Victoria moved to set aside the default judgment, alleging “improper
service, mistake, and excusable neglect.” Sharol assigned the judgment
back to Michael, who opposed Victoria’s motion.

¶5 The superior court set aside the default judgment without
explanation. Michael timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(2). See Ruffino v.
Lokosky, 245 Ariz. 165, 168, ¶ 7 (App. 2018).

DISCUSSION

¶6 The court may relieve a party from a final judgment for the
following reasons:

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(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for
a new trial under Rule 59(b)(1);

(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or other misconduct of an opposing party;

(4) the judgment is void;

(5) the judgment has been satisfied, released, or discharged; it
is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or

(6) any other reason justifying relief.

Ariz. R. Civ. P. (“Rule”) 60(b). “The law favors resolution on the merits,
and therefore if the trial court has doubt about whether to vacate a default
judgment, it should rule in favor of the moving party.” Daou v. Harris, 139
Ariz. 353, 359 (1984) (citing Richas v. Superior Court, 133 Ariz. 512, 514
(1982)).

I. Victoria Did Not Waive Her Contention That the Default Judgment
Is Void.

¶7 Victoria contends on appeal that the default judgment is void
because service by publication was improper. See Ruffino, 245 Ariz. at 168,
¶ 10 (“[A] judgment is void if it was entered without jurisdiction because
of a lack of proper service.” (citations omitted)). Michael contends Victoria
cannot raise this argument on appeal because she “did not argue in the trial
court that the judgment was void.”

¶8 We typically do not consider arguments raised for the first
time on appeal. Englert v. Carondelet Health Network, 199 Ariz. 21, 26, ¶ 13
(App. 2000). But Victoria argued that Michael did not meet the
prerequisites for service by publication in her motion to set aside. Michael
also addressed the issue in his response. As such, although Victoria did not
use the word “void,” she raised the substantive issue below. We therefore
decline to find waiver.

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II. The Superior Court Did Not Err in Setting Aside the Default
Judgment.

¶9 We review orders setting aside default judgments for an
abuse of discretion. BYS Inc. v. Smoudi, 228 Ariz. 573, 577, ¶ 14 (App. 2012).
We review de novo whether a defaulted party was properly served, but we
will not set aside the superior court’s factual findings unless they are clearly
erroneous. See Ruffino, 245 Ariz. at 168, ¶ 9.

¶10 At all times relevant to this appeal, a party could serve a
person whose last-known address was in Arizona by publication only if:

(i) the serving party, despite reasonably diligent
efforts, has been unable to ascertain the person’s
current address; or

(ii) the person to be served has intentionally avoided
service of process; and

(B) service by publication is the best means practicable in the
circumstances for providing the person with notice of the
action’s commencement.

Ariz. R. Civ. P. 4.1(l)(1) (eff. Jan. 1, 2017). 1 Before proceeding with service
by publication, the superior court should consider alternative methods of
service, and the party seeking to serve by publication “should be prepared
to explain why alternative service would be impracticable.” Ruffino, 245
Ariz. at 170, ¶ 17. If more practicable communication channels are
available, the serving party should first use those channels to try to confirm
the other party’s address or move for alternative service. Id. at ¶ 18.

¶11 Although Michael’s affidavit of service states that he both
attempted to contact and attempted to locate Victoria, he did not move for
alternative service before resorting to service by publication. See Ariz. R.
Civ. P. 4.1(k)(1) (eff. Jan. 1, 2017). Moreover, Victoria disputed the extent of
Michael’s efforts to contact and locate her, as she contended that he had
only “made the bare minimum effort by . . . sending an email and a letter”
and that he could have discovered her address through a public records

1 Rule 4.1(l) was amended effective January 1, 2022, to require a party
serving by publication to (1) show that service under Rule 4.1(c)-(k),
including an alternative means of service, is impracticable, and (2) obtain
court approval via motion. We cite the version of the rule in effect when
Michael attempted to serve Victoria by publication.

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search. Victoria also offered affidavit testimony that she had “blocked
[Michael] on all forms of social media and telephonic or electronic
communication” and had no “reason to believe that a lawsuit would be
brought against [her].” The superior court reasonably could have
concluded that Michael did not exercise reasonable diligence in
ascertaining Victoria’s address before proceeding with service by
publication.

¶12 Michael also contends service by publication was proper
because Victoria received actual notice of the lawsuit through email and
regular mail. Actual notice does not validate otherwise improper service.
See Bank of New York Mellon v. Dodev, 246 Ariz. 1, 10, ¶ 29 (App. 2018)
(“Proper, effective service on a defendant is a prerequisite to a court’s
exercising personal jurisdiction over the defendant.” (quoting Barlage v.
Valentine, 210 Ariz. 270, 272, ¶ 4 (App. 2005))). And although service by
mail can be appropriate alternative service if approved by the court,
Michael did not move for alternative service. See Postal Instant Press, Inc. v.
Corral Rests., Inc., 187 Ariz. 487, 488 (1997) (“When a party uses the mail, []
service must be completed by the serving party in accordance with the rule
. . . .”). On this record, we cannot say service by publication was the best
means practicable to notify Victoria of this lawsuit. See Ariz. R. Civ. P.
4.1(l)(1)(B) (eff. Jan. 1, 2017).

¶13 Michael also contends Victoria did not move to set aside the
default judgment within a reasonable time. See Ariz. R. Civ. P. 60(c)(1). A
party seeking relief from a void judgment need not show that it acted
promptly. Blair v. Burgener, 226 Ariz. 213, 216, ¶ 7 (App. 2010) (citation
omitted). Indeed, the court must vacate a void judgment even if the moving
party unreasonably delays in seeking relief. Ruffino, 245 Ariz. at 168-69,
¶ 10 (citations omitted). For these reasons, we affirm the order setting aside
the default judgment. See Ariz. Real Est. Inv., Inc. v. Schrader, 226 Ariz. 128,
129, ¶ 6 (App. 2010) (“If a defendant has not been properly served, and the
defect in service has not been waived, any resulting judgment is void and
must be vacated on request.” (citation omitted)).

III. Attorneys’ Fees on Appeal Are Denied.

¶14 Both sides request attorneys’ fees under A.R.S. § 12-349.
Michael provides no basis under this statute for his request, and we discern
none. Victoria contends that by pursuing this appeal, Michael
“unreasonably expanded and delayed the proceedings.” See A.R.S. § 12-
349(A)(3). We disagree, and in our discretion, we deny both sides’ request
for attorneys’ fees.

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CONCLUSION

¶15 We affirm the superior court’s order setting aside the default
judgment. Victoria may recover her taxable costs incurred in this appeal
upon compliance with Arizona Rule of Civil Appellate Procedure 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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