J3 Harmon v. Rhode

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

J3 HARMON, LLC, Plaintiff/Appellee,

v.

JILL RHODE, Defendant/Appellant.

No. 1 CA-CV 25-0706
FILED 07-02-2026

Appeal from the Superior Court in Maricopa County
No. CV2014-003727
The Honorable Jason Easterday, Judge Pro Tempore

VACATED

COUNSEL

Sanford J. Germaine PC, Phoenix
By Sanford J. Germaine
Counsel for Plaintiff/Appellee

Bewley, Lassleben & Miller LLP, Whittier, CA
By Leighton M. Anderson (Pro Hac Vice)
Co-Counsel for Defendant/Appellant

Clear Counsel Law Group, Mesa
By Dustin E. Birch
Co-Counsel for Defendant/Appellant

J3 HARMON v. RHODE
Decision of the Court

MEMORANDUM DECISION

Presiding Judge David B. Gass1 delivered the decision of the court, in which
Judge Anni Hill Foster and Judge D. Andrew Gaona joined.

G A S S, Judge:

¶1 Jill Rhode appeals the superior court’s order denying her
motion to vacate J3 Harmon, LLC’s default judgment against her based on
invalid service by publication. Because J3 Harmon did not make reasonably
diligent efforts to locate Jill before serving her by publication, the court
vacates the superior court’s default judgment as void for lack of
jurisdiction.

FACTUAL AND PROCEDURAL HISTORY

¶2 The court views the facts in the light most favorable to
upholding the superior court’s ruling on a motion to set aside a default
judgment. Ezell v. Quon, 224 Ariz. 532, 534 ¶ 2 (App. 2010). And the court
defers to the superior court’s factual findings unless clearly erroneous.
Ruffino v. Lokosky, 245 Ariz. 165, 168 ¶ 9 (App. 2018).

¶3 In 2012, John Rhode, Jill’s then husband, operated Rhode
CrossFit. That year, CrossFit leased a fitness studio from J3 Harmon.
Though J3 Harmon’s lease was with CrossFit, John and Jill (who were
married at the time) both signed a limited personal guarantee. Under the
lease terms, rent was due on the first day of each month.

¶4 When CrossFit stopped paying rent, J3 Harmon repossessed
the studio. In 2014, J3 Harmon filed a complaint for payment of $33,196.63

1 Judge David B. Gass was a sitting member of this court when the matter

was assigned to this panel of the court. He retired effective June 30, 2026. In
accordance with the authority granted by Article VI, Section 3, of the
Arizona Constitution, and under A.R.S. § 12-145, the Chief Justice of the
Arizona Supreme Court has designated Judge David B. Gass as a judge pro
tempore in the Court of Appeals for the purpose of participating in the
resolution of cases assigned to this panel during his term in office and for
the duration of Administrative Order 2026-87.

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J3 HARMON v. RHODE
Decision of the Court

under the lease, naming CrossFit, John, and Jill.2 For John and Jill, Harmon
filed an affidavit showing the process server attempted service at 3
addresses, checking the box saying the process server asked about “the last
known residence of defendants” and “other.” The explanation following
the “other” box said:

6/12/14@12:09pm 1610 N. Rosemont, Ste.11, Mesa, 85205-
3343 The office located at this address is empty at this time
and there is no forwarding information available. I called the
client and updated. Per client, hold service. 6/23/14@6:10pm
10611 E. Portobello Avenue, . Mesa, 85212 I spoke to the
current occupant. They said their name was Combs and that
they have lived at this address for 2 months. They said John
Rhode does not live here and they do not know him. They
have gotten mail for him though. I called the client and
updated. Per client, hold service. 7/15/14@6:10 pm 10521 E.
Plata Avenue, Mesa, 85212 The house located at this address
is vacant. I called the client and updated. Per client, RTA docs.

¶5 J3 Harmon served Jill by publication with the above and filed
an affidavit of propriety and completion of service by publication. That
affidavit offered no new information, simply referencing the process
server’s affidavit. After Jill did not answer, J3 Harmon sought default
judgment against her under the personal guarantee. The superior court
entered that default judgment.

¶6 In 2024—10 years later—J3 Harmon renewed the judgment
and began garnishing Jill’s wages. At that point, Jill moved to vacate for
lack of personal jurisdiction. The superior court held oral argument, and
found Jill failed to prove J3 Harmon’s service was improper. It then denied
her motion to vacate the default judgment.

¶7 The court has jurisdiction over Jill’s timely appeal under
Article VI, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21.A.1 and -2101.A.1.

DISCUSSION

¶8 Jill argues the superior court should have granted her motion
to vacate a default judgment based on defective service by publication.
Because the record shows J3 Harmon did not determine Jill’s address at the

2 CrossFit and John are not parties to this appeal.

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J3 HARMON v. RHODE
Decision of the Court

time of service and J3 Harmon did not file an answering brief, Jill raises a
debatable issue about whether service by publication was improper.

¶9 When a debatable issue exists, the court may treat the failure
to file an answering brief as a confession of error. See Savord v. Morton, 235
Ariz. 256, 259 ¶ 9 (App. 2014). But if the record clearly resolves an issue,
there is no debatable question. See Air E., Inc. v. Wheatley, 14 Ariz. App. 290,
294 (1971).

¶10 The Arizona Supreme Court characterized a debatable
question as one requiring “much industry and independent research to
refute.” Merrill v. Wheeler, 17 Ariz. 348, 350 (1915). It must spark “at least
grave doubt” in the superior court’s order. Adkins v. Adkins, 39 Ariz. 530,
532 (1932). And any questions asked must raise a novel legal issue. See
Childs v. Frederickson, 21 Ariz. 248, 249 (1920). Here, J3 Harmon has shown
no reasonable excuse for failing to file an answering brief. And as explained
below, Jill’s appeal raises a debatable question.

¶11 Jill argues J3 Harmon did not make reasonably diligent efforts
to locate Jill’s address, making service of publication improper. The court
agrees. Because the record clearly resolves the issue, the court resolves on
that issue alone.

¶12 The court generally reviews the denial of a Rule 60(b)(4)
motion for abuse of discretion. Ruffino, 245 Ariz. at 168 ¶ 9. But the court
applies a de novo standard of review when deciding whether service was
proper because it presents a legal question. See id.; see also Springfield Credit
Union v. Johnson, 123 Ariz. 319, 323 n.5 (1979) (“If an Arizona judgment is
void for lack of jurisdiction, the court has no discretion, but must vacate the
judgment.”).

¶13 Under Rule 60, the superior court must set aside a void
judgment. Ariz. R. Civ. P. 60(b)(4). “[A] judgment is void if it was entered
without jurisdiction because of a lack of proper service.” Ruffino, 245 Ariz.
at 168 ¶ 10; see also Koven v. Saberdyne Sys., Inc., 128 Ariz. 318, 321 (App.
1980) (“[A] judgment would be void and subject to attack if the court that
rendered it was without jurisdiction because of lack of proper service.”).
When serving by publication, the serving party must comply with Rule
4.1(l ), Arizona Rules of Civil Procedure.

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J3 HARMON v. RHODE
Decision of the Court

¶14 Under Rule 4.1(l )(1)(A),3 a plaintiff may serve a party by
publication if “the serving party, despite reasonably diligent efforts, has
been unable to determine the person’s current address; or the person to be
served has intentionally avoided service of process.” The plaintiff further
must show “service by publication is the best means practicable in the
circumstances for providing the person with notice of the action’s
commencement.” Rule 4.1(l )(1)(B).

¶15 The plaintiff must support service by publication with an
“affidavit that sets forth the serving party’s reasonably diligent efforts to
serve the person.” Rule 4.1(l )(1)(C). The affidavit must identify “the
manner and dates of the publication and mailing, and the circumstances
warranting service by publication. If no mailing was made because the
serving party did not know the current address of the person being served,
the affidavit must state that fact.” Rule 4.1(l)(4)(A); Ruffino, 245 Ariz. at 168
¶ 11. And the affidavit cannot rely on conclusory statements but must
include “facts indicating [the party] made a due diligent effort to locate an
opposing party.” Sprang v. Petersen Lumber, Inc., 165 Ariz. 257, 261 (App.
1990).

¶16 The superior court must find due diligence before it can
acquire jurisdiction following service by publication. Preston v. Denkins, 94
Ariz. 214, 222 (1963). “[I]f the affidavit fails to indicate that due diligence
was exercised to locate the defendant, the default judgment is void on its
face for lack of jurisdiction.” Sprang, 165 Ariz. at 262 (citation omitted). “A
‘due diligent effort’ requires such pointed measures as an examination of
telephone company records, utility company records, and records
maintained by the county treasurer, county recorder, or similar record
keepers.” Id. at 261. Ruffino further established a reasonably diligent effort
includes attempting contact by “telephone, email, or even social media to
verify [a] correct address.” 245 Ariz. at 168 ¶ 14.

¶17 Jill raises a debatable question because J3 Harmon’s affidavit
did not show reasonably diligent efforts to determine Jill’s address, and it
does not identify “the circumstances warranting service by publication.”

3 Rule 4.1 was amended in 2021 to allow service by publication “if a party

shows that service provided by Rule 4.1(c) through 4.1(k) . . . is
impracticable” and removing the limit “only if the last known address of
the person to be served is within Arizona. . . . “ Ariz. Civ. R. P. 4.1(l) (2017),
amended by, Ariz. Civ. R. P. 4.1 (2021). Because the 2021 change does not
affect the due diligence a party must undertake before serving a party by
publication under Ruffino, that change does not affect the outcome here.

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J3 HARMON v. RHODE
Decision of the Court

True, the affidavit shows the process server attempted service at several
addresses. But beyond that, the affidavit shows the process server merely
confirmed the then residents at 1 address did not know John or where he
lived. The affidavit does not even say the process server asked about Jill.
Though the process server checked boxes on the affidavit saying the process
server asked about “the last known residence of defendants” and
“other[s],” the affidavit offers no other explanation beyond that noted in
paragraph 4 above.

¶18 Whether that was enough is debatable. See id. The affidavit
does not show J3 Harmon made any efforts beyond those shown. In fact,
the process server did not check the boxes “searched local telephone
directories and information service,” “inquired of the U.S. Post Office
concerning forwarding address,” or “inquired of neighbors at last known
residence.” The only 2 checked boxes were “inquired of last known
address” and “other” followed by the text quoted in paragraph 4 above.

¶19 At bottom, J3 Harmon’s lack of knowledge of Jill’s residence
arguably was not enough for publication service. See Preston, 94 Ariz. at 222
(stating a serving party must show the jurisdictional fact that residence is
unknown, not merely allege plaintiff does not know the residence). Because
J3 Harmon arguably did not use reasonably diligent efforts to locate Jill, the
superior court should have granted Jill’s motion and vacated the default
judgment. See Ruffino, 245 Ariz. at 168 ¶ 12 (serving a publication requires
a plaintiff to show it could not determine the defendant’s current address
at the time of service or the defendant was intentionally avoiding service).
The court thus vacates the default judgment as void for lack of proper
service.

ATTORNEY FEES AND COSTS

¶20 Jill seeks attorney fees under A.R.S. § 12-341.01.A because this
dispute arises out of a contract. Because Jill is the successful party, the court
grants her request for reasonable attorney fees and costs incurred on appeal
upon her compliance with Rule 21, Arizona Rules of Civil Appellate
Procedure.

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J3 HARMON v. RHODE
Decision of the Court

CONCLUSION

¶21 The court vacates the default judgment.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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