Lomeli v. Velasco

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TYRONE C. LOMELI, Plaintiff/Appellee,

v.

JESSICA VELASCO AND FILEMON VELASCO, Defendants/Appellants

and

YAVAPAI COUNTY TREASURER, Defendant/Appellee.

________________________________________________________

HOUSEOPOLY, LLC, Intervenor/Appellee

No. 1 CA-CV 21-0576
FILED 11-3-2022

Appeal from the Superior Court in Yavapai County
No. P1300CV201801054
The Honorable John David Napper, Judge

AFFIRMED

COUNSEL

Stephen H. Schwartz, Sedona
Counsel for Defendants/Appellants
Law Office of Lawrence K. Lynde, PLLC, Phoenix
By Lawrence K. Lynde
Counsel for Intervenor/Appellee Houseopoly, LLC

MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.

T H U M M A, Judge:

¶1 Defendants Jessica and Filemon Velasco appeal an order
denying their motion to vacate a default judgment, claiming a lack of
jurisdiction. Because the Velascos have shown no error, the order is
affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 In November 2018, plaintiff Tyrone Lomeli filed a complaint
to foreclose on a tax lien and quiet title on real property, including a house,
the Velascos owned in Prescott. In December 2018, Lomeli’s process server
made a court filing stating she had been unable to serve the Velascos at the
Prescott House after three attempts on different days at different times.1
The filing noted the Prescott House “[s]eems to be abandoned,” with the
front door blocked by chairs, boards on the windows and doors, no cars
present and no electrical panel. The process server left a card during the
second attempt, which was still there on her third attempt.

¶3 Lomeli then had the process server attempt service at the
Velascos’ residence in Paulden, Arizona. The process server later made a
court filing stating she had been unable to serve the Velascos at the Paulden

1 This filing states that the third attempt was made on December 18, 2018 at
3:15 p.m., while the manual file stamp states it was received by the court on
December 18, 2018 at 9:17 a.m. The process server’s notes, admitted at a
later hearing and stating the third attempt was made on “12-18-18 @ 3:15
pm,” suggest the file stamp may have been off by a day. However, because
the Prescott House was abandoned, the precise date of the third service
attempt at that properly was not material.

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House after three attempts on different days at different times, providing
these details:

1st Attempt 12-22-18 @ 12:59pm. Gate around
house and it’s locked, unable to get in, left card.
Multiple vehicles in drive[way] but not able to
see plates. 2nd Attempt 12-27-18 @ 06:17pm, gate
still closed and locked, card gone that I left.
Could see lights on in house. 3rd Attempt 12-28-
18 @ 07:32am Gate still closed and locked, card
gone, unable to get in.

¶4 Lomeli then moved to effectuate service by alternative means,
claiming the Velascos were “deliberately avoiding service of process.” See
Ariz. R. Civ. P. 4.1(k) (2022).2 The court granted the motion, directing that
Lomeli may “post a copy of the documents at the main entrance of the
defendant’s residence and then mailing a second copy of the documents at
the same residence address by regular first class mail, postage prepaid.”
The process server then filed proof of service in January 2019, declaring she
had posted the documents “to the pole of the gate that is the entry to the”
Paulden House and mailed a copy via first class mail.

¶5 In February 2019, Lomeli applied for entry of default, with a
supporting affidavit, as well as a motion for default judgment. See Ariz. R.
Civ. P. 55. Along with the address for the Paulden House, the affidavit listed
five of the nine symbols of the parcel number. In April 2019, after a hearing,
the court found that Lomeli was entitled to entry of a default judgment. In
May 2019, the court entered a judgment placing a lien on the Prescott House
for $955.50. In September and October 2019, Lomeli filed two writs of
special execution seeking to enforce the judgment. In December 2019, the
Prescott House was sold at a sheriff’s sale to intervenor Houseopoly, LLC,
for $110,000.

¶6 In June 2020, the Velascos moved to vacate the May 2019
judgment as void, to quash the writ of execution and to set aside the
sheriff’s sale. See Ariz. R. Civ. P. 60(b). Stating they had owned the Prescott
House for years but had never lived there, and that the Yavapai County
Treasurer’s Office listed their residence as the Paulden House, the motion
alleged the process server improperly tried to serve them at the Prescott
House. The motion claimed the Paulden House has two entry gates, one

2Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

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which is always locked and one which is “always kept chained but it is
never locked when the Velascos are home.” The motion added that sheriff’s
deputies had visited “as many as twenty times in the last three years and
have never had a problem accessing the home.” The motion claimed the
Velascos “were never personally served;” “never attempted to evade
service” and “never knew a lawsuit had been filed.” The motion alleged the
Velascos “did not learn of the tax sale until some weeks ago.” Claiming
personal service was practicable, meaning no proper service of process had
occurred, the motion argued the court lacked jurisdiction over the Velascos
and asked the court to vacate the judgment, void the writ of execution and
set aside the sheriff’s sale.

¶7 The court held an evidentiary hearing on the motion over
parts of three days. The evidence received included that the process server
sent the summons via first class mail to the Velascos’ residence, with Mr.
Velasco testifying that they received mail at their residence. The evidence
also included a notification of judgment debtor and notice of sheriff’s sale,
signed by Mr. Velasco in November 2019, showing the Velascos had notice
of the impending sale but did not seek to stop it. Mr. Velasco testified he
did not understand the importance of the document at that time, but did
not deny signing it in November 2019 before the December 2019 sheriff’s
sale.

¶8 After hearing from several witnesses, including the process
server, law enforcement officers and Mr. Velasco, and receiving several
exhibits, the court denied the Velascos’ motion. The court determined that
the ruling authorizing alternative service, given that personal services was
impracticable, was not error. After assessing witness credibility, and noting
the conflicting evidence, the court found “there is outside information that
confirms what was in the process server’s affidavit.” Concluding service of
process by alternative means was completed, the court ruled that “[u]nder
those circumstances the judgment was valid.” The court also found that the
Velascos had notice of the sheriff’s sale before it occurred, but did not take
timely action to prevent the sale. This court has jurisdiction over the
Velascos’ timely appeal pursuant to Article 6, Section 9, of the Arizona
Constitution and A.R.S. sections 12-102.21(A)(1) and -2101(A)(1).

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DISCUSSION

¶9 This court will generally affirm a superior court’s ruling on a
Rule 60(b) motion absent an abuse of discretion. Ruffino v. Lokosky, 245 Ariz.
165, 168 ¶ 9 (App. 2018). Whether service is proper “is a legal question of
personal jurisdiction which we review de novo.” Id. (citations omitted). This
court, however, “defer[s] to the superior court’s factual findings, and will
not set them aside unless they are clearly erroneous.” Id. (citation omitted).

¶10 The Velascos argue “[t]he default judgment is void because
Lomeli failed to demonstrate impracticability of traditional means of
service,” arguing the process server’s attempts at service did not show that
it was impracticable. See Ariz. R. Civ. P. 4.1(k) (“If a party shows that
[traditional] means of service . . . are impracticable, the court may – on
motion and without notice to the person to be served – order that service
may be accomplished in another manner.”). “Impracticable does not mean
impossible, but rather that service would be ‘extremely difficult or
inconvenient.’” Bank of N.Y. Mellon v. Dodev, 246 Ariz. 1, 10 ¶ 31 (App. 2018)
(citation omitted). Impracticability “requires something less than the ‘due
diligence’ showing required before service by publication may be utilized.”
Blair v. Burgener 226 Ariz. 213, 218 ¶ 16 (App. 2010) (citation omitted).

¶11 The process server’s December 2018 filings properly support
the court’s finding that service of process by ordinary means was
impracticable and that service by alternative means was appropriate. See
Ariz. R. Civ. P. 4.1(k). Although disputing the date of the process server’s
third service attempt at the Prescott House, that property was not occupied,
meaning further attempts at service there would not have been fruitful. See
Dodev, 246 Ariz. at 10 ¶ 32 (noting court did not err in authorizing
alternative means of service when “further attempts at personal service”
were unlikely to be effective). The court properly could conclude that the
process server’s attempts at the Paulden Home, see supra ¶ 3, supported the
same conclusion. Id. Nor have the Velascos shown how the superior court
was compelled to hold an evidentiary hearing, as suggested at oral
argument in this court, given the filings provided in seeking leave to
effectuate service by alternative means. The Velascos have failed to show
that the order allowing service by alternative means was error.

¶12 Nor did the evidence considered by the superior court at the
evidentiary hearing held more than two years later compel a different
result. That evidence included the process server’s notes from her various
attempts to effectuate service. The evidence showed the process server went
to the Paulden House three times but was “unable to access other entrances.

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Either locked or blocked;” “no trespassing [signs] on all gates;” “My card
gone I left, no call record. Gate still locked;” and “unable to get in.” The
process server testified that she had left her card and each time she revisited
the property, her card was no longer where she had left it, and that it was
typical for her to honk her horn to attempt to reach the people in the home.

¶13 The court received, and noted in denying the Rule 60 motion,
conflicting evidence about whether the gate was locked. Mr. Velasco, his
daughter and their neighbor testified that the gate had a chain around it,
but was never locked when they were home. Law enforcement officers,
who had been to the property for unrelated calls, testified that the gate often
was unlocked but sometimes was locked. This and other evidence,
including no trespassing and beware of dog signs at the house, support the
finding that alternative means of service was appropriate. See Dodev, 246
Ariz. at 10 ¶¶ 31-32.

¶14 The Velascos next argue that the default judgment was void
“because Lomeli’s failure to effectuate service in the manner prescribed
rendered the service ineffective and deprived the court of jurisdiction.” But
the process server testified that, after service by alternative means was
authorized, she mailed the summons via first class mail, as well as posted
the summons “to the pole of the gate that is the entry to the property.” Mr.
Velasco testified that he never saw the summons taped to the gate. Mr.
Velasco also testified that, although he had P.O. Box for mail, he received
other mail sent to his street address. In the end, the superior court weighed
and assessed the conflicting evidence and credibility of the witnesses and
found alternative service was properly made by notice and mailing. See
Ariz. R. Civ. P. 4.1(k)(2). On the record presented, the Velascos have not
shown that finding was error. Blair, 226 Ariz. at 220 ¶ 23. As a result, the
Velascos’ argument that the court did not have jurisdiction because the
service was ineffective fails. And because service was proper, the Velascos
have shown no due process violation.

¶15 The Velascos’ argument that the default judgment is void
because Lomeli “misrepresent[ed]” the Velascos’ address is unsupported
by the record. The Velascos argue that Lomeli’s Rule 55 affidavit, which
included the parcel number in the address, was a “fictitious secondary
address” and “resulted in a false statement and an incorrect address.” In
rejecting that argument, the superior court found “they didn’t send it to the
wrong address. They actually gave a more specific address by including the
parcel number to it.” The Velascos argue that adding the parcel number
was not more specific because the parcel number was missing four digits.
But the Velascos have not shown how that alters the address, because the

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parcel number was added along with the address. For these reasons, this is
not like Ruiz v. Lopez, relied on by the Velascos, where the court affirmed a
superior court’s finding that alternative service by mailing a summons to
the street address for “a huge complex without an apartment number was
not sufficient.” 225 Ariz. 217, 219-20 ¶ 6 (App. 2010). The Velascos have not
shown how the added specificity of the parcel number to the address for a
single family home was a misrepresentation or was a “fictitious address.”

¶16 Because the Velascos have shown no error in the order
authorizing alternative means of service or in the effectuation of the
alternative means of service authorized, they have also shown no error in
the court denying their Rule 60 motion or the relief they sought. See BYS
Inc. v. Smoudi, 228 Ariz. 573, 577 ¶ 14 (App. 2012).

CONCLUSION

¶17 The order denying the Velascos’ motion to vacate judgment
is affirmed. Houseopoly, LLC is awarded its taxable costs incurred on
appeal contingent on its compliance with ARCAP 21.

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

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