Barlage v. Valentine

FILED BY CLERK
APR 27 2005
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO

DALE BARLAGE, ) 2 CA-CV 2004-0127
) DEPARTMENT B
Plaintiff/Appellant, )
) OPINION
v. )
)
LEIGH VALENTINE, )
)
Defendant/Appellee. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. C20033143

Honorable Sharon Douglas, Judge Pro Tempore

REVERSED AND REMANDED

Kevin W. Rouse Minneapolis, MN
Attorney for Plaintiff/Appellant

Collins Butler, P.L.C.
By Michael J. Butler Tucson
Attorneys for Defendant/Appellee

P E L A N D E R, Chief Judge.

¶1 In this contract action, appellant Dale Barlage contends the trial court erred

in vacating the default judgment entered against appellee Leigh Valentine. Because we
conclude the basis for the trial court’s ruling was not completely sound, we reverse the order

vacating the default judgment and remand the case for further proceedings.

BACKGROUND

¶2 Appellant Dale Barlage filed this action against Valentine Cosmetics, L.L.C.

and Leigh Valentine in June 2003.1 Barlage attempted to serve the out-of-state defendants

in two ways: by mail and publication. Pursuant to Rule 4.2(c), Ariz. R. Civ. P., 16 A.R.S.,

Pt. 1, he sent the summons and complaint by certified mail to the Dallas, Texas, address

listed on Valentine’s Texas driver’s license. That address, which listed a suite number, was

located in a branch of The UPS Store, a commercial mail-receiving agency (CMRA).

Barlage also published the summons under Rule 4.2(f), averring that Valentine was

“[a]voiding service of process.”

¶3 When neither Valentine Cosmetics nor Valentine filed an answer, Barlage

applied for and obtained an entry of default. In November 2003, after a default hearing at

which Barlage testified, a default judgment in the amount of $784,000 was entered in his

favor against Valentine and Valentine Cosmetics. Valentine moved to set aside the

judgment, arguing that she had never been served with the summons and complaint.2 The

1
Barlage had purchased the contractual claims of two other parties who had entered
into investment agreements with Valentine Cosmetics.
2
The motion was filed only on behalf of Valentine, not Valentine Cosmetics, L.L.C.,
which did not join in the motion or otherwise challenge the entry of default or default
judgment. Nor is Valentine Cosmetics a party to this appeal.

2
trial court granted the motion, stating that although Valentine “was likely evading service,”

Barlage’s “efforts to serve her under Rule 4.2(f) and Rule 4.2(c) . . . have failed.”

DISCUSSION

¶4 Proper, effective service on a defendant is a prerequisite to a court’s exercising

personal jurisdiction over the defendant. Koven v. Saberdyne Sys., Inc., 128 Ariz. 318, 321,

625 P.2d 907, 910 (App. 1980) (“Proper service of process is essential for the court to have

jurisdiction over the defendant.”); Kadota v. Hosogai, 125 Ariz. 131, 134, 608 P.2d 68,

71 (App. 1980) (“[T]he law is clear that a judgment is void if the trial court did not have

jurisdiction because of a lack of proper service.”). Barlage contends he properly served

Valentine and, therefore, the trial court had personal jurisdiction and erred in vacating the

default judgment entered against her. He maintains that, contrary to the trial court’s ruling,

he properly served Valentine with the summons by publication and by certified mail under

Rule 4.2, Ariz. R. Civ. P.

¶5 We will not disturb an order vacating a default judgment unless a clear abuse

of discretion is shown. Cockerham v. Zikratch, 127 Ariz. 230, 233, 619 P.2d 739, 742

(1980). But, “[s]ome legal justification for the vacation of judgment must exist,” and

vacating a default judgment without legal grounds is an abuse of discretion. Id. We

therefore consider the grounds on which the trial court vacated the default judgment.

I. Service by Publication

¶6 Barlage first argues the trial court erred in determining that service of the

summons by publication was inadequate under Rule 4.2(f). In the affidavit he filed to show

3
why he had used publication, Barlage stated that Valentine had been “[a]voiding service.”

He further stated that Valentine’s residence was unknown, despite “a diligent search to find

out,” and that his search had “failed to reveal any information that might lead to knowledge”

of that.

¶7 Citing Sprang v. Peterson Lumber, Inc., 165 Ariz. 257, 798 P.2d 395 (App.

1990), the trial court stated that “a finding of due diligence prior to service by publication

is a jurisdictional prerequisite.” The court found that Barlage had produced evidence that,

“even if [he] had conducted a due diligence search and set forth those facts in [his] affidavit,

[he] likely would not have been able to locate the residence of . . . Valentine.” But the

court ruled that Barlage’s affidavit of due diligence, which failed to set forth any of the due

diligence measures he had taken, was insufficient.3

3
On appeal, Barlage argues the trial court failed to consider a “1994 amendment” to
Rule 4. He argues that Sprang is inapplicable in this case because it was based on the rule
in effect in 1990 when Sprang was decided. Barlage also states the amendment “eliminated
the necessity of filing an affidavit of due diligence before resorting to service by publication.”
And he states the prior rule only allowed service by publication if a defendant could not be
found, whereas the current rule allows publication when the defendant has “avoided service
of process.” Our review of the previous rules, however, reveals no such changes. The 1994
amendment to Rule 4.2(f) merely eliminated the requirement for out-of-state publication.
See Rule 4.2(f), Ariz. R. Civ. P., 16 A.R.S., Pt. 1, Court Comment 1994 Amendment.
Additionally, former Rule 4(e)(3), at the time Sprang was decided, allowed service by
publication when a defendant was “attempting to avoid service of summons.” See Former
Rule 4(e)(3), 154 Ariz. LIX (1987); Former Rule 4(e)(1), 154 Ariz. LVIII (1987). And the
plaintiff was required to “file an affidavit showing the publication and mailing and the
circumstance warranting the utilization of the procedure.” Former Rule 4(e)(3). Thus,
contrary to Barlage’s suggestion, the affidavit requirement for service by publication has not
changed in this state since at least 1987. Id.

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¶8 Rule 4.2(f) permits service by publication when an out-of-state defendant has

“avoided service of process.” The rule also requires that the party who serves pleadings by

publication “shall file an affidavit showing the manner and dates of publication and mailing,

and the circumstances warranting utilization of the procedure authorized by this subpart

which shall be prima facie evidence of compliance herewith.” Id. The affidavit must “set[]

forth facts indicating [the serving party] made a due diligent effort to locate an opposing

party to effect personal service.” Sprang, 165 Ariz. at 261, 798 P.2d at 399; see also

Omega II Inv. Co. v. McLeod, 153 Ariz. 341, 342, 736 P.2d 824, 825 (App. 1987) (finding

of due diligence before service by publication is jurisdictional prerequisite). Barlage’s

affidavit failed to set forth any facts showing a due diligence effort. It merely asserted in

conclusory fashion that such an effort had been made and, therefore, was insufficient. See

Sprang, 165 Ariz. at 261, 798 P.2d at 399.

¶9 Barlage contends, however, that “[t]here is no dispute that plaintiff Barlage’s

counsel exercised due diligence in attempting to locate . . . Valentine prior to . . . service by

publication.” And, he argues, a plaintiff is not required to “rely exclusively on the affidavit

supporting service of process by publication.” Rather, the court should consider “the entire

record” in determining whether Valentine had avoided service, making service by publication

valid. In Hirsch v. National Van Lines, Inc., 136 Ariz. 304, 666 P.2d 49 (1983), our

supreme court stated that service by registered mail on an out-of-state corporate defendant

under former Rule 4(e)(1) and (2) could be valid even though the requisite affidavit had not

stated the circumstances warranting the procedure that had been used. But, the Hirsch

5
court found that “there was evidence available to the judge at the time the motion to set

aside was heard” indicating that the circumstances had in fact existed. Id. at 308, 666 P.2d

at 53.

¶10 Here, in contrast, the trial court stated that Barlage had merely introduced

evidence that “if [he] had conducted” a due diligence search, he probably would not have

been able to locate Valentine. As noted earlier, the court also found that Valentine was

“likely evading service of process.” Contrary to Barlage’s argument, however, this does not

suggest that he had shown the circumstances allowing service by publication, namely

Valentine’s avoidance of service. Rather, it merely reflects the trial court’s belief that due

diligence efforts, if made, likely would have been fruitless.

¶11 Indeed, Barlage presented some evidence that Valentine had received the

summons, but Valentine disputed that, averring that she “first became aware of [the] lawsuit

against her on December 10, 2003.” And, other than the service by certified mail to

Valentine’s mailing address, discussed below, the only other service Barlage attempted was

by certified mail to Valentine’s mother’s residence in North Carolina. Thus, we cannot say

the trial court erred in finding that Barlage’s attempt to serve Valentine by publication had

failed.

II. Service by Mail

¶12 Barlage also contends the trial court erred in determining that, because

Valentine herself had not signed the return receipt, he had failed to adequately serve her by

certified mail. As noted earlier, Barlage sent the summons and complaint by certified mail

6
to a Dallas, Texas, address listed on Valentine’s driver’s license.4 That address was located

in a branch of The UPS Store. The certified mail receipt was signed and returned in June

2003 by an “S. Bailey,” whom Valentine averred she did not know.5

¶13 When Valentine rented her box at The UPS Store, however, she signed an

“Application for Delivery of Mail Through Agent” with the United States Postal Service.

That application authorized The UPS Store, as a CMRA, to receive “restricted delivery

mail.” Although the application was a standard form, the authorization to accept certified

mail was not simply part of the boilerplate language. Rather, it included a separate box in

which Valentine had to write her name to authorize the CMRA to accept “restricted delivery

mail.” Thus, Valentine expressly authorized her CMRA to accept certified mail on her

behalf.

¶14 Rule 4.2(c) requires the serving party to file an affidavit with the court stating,

inter alia, that the summons and a copy of the pleading “were in fact received by the party

as evidence[d] by the receipt.” Citing dicta in Snow v. Superior Court, 183 Ariz. 320, 324

n.2, 903 P.2d 628, 632 n.2 (App. 1995), the trial court stated that the Rules of Civil

4
Barlage averred without contradiction below that the Dallas address was not only
listed on Valentine’s Texas driver’s license, but also was used for her criminal history
(relating to a charge of driving under the influence of alcohol) with the Texas Department
of Motor Vehicles; was used for service of process on Valentine in Texas litigation
concerning the same investment contracts at issue in this case; was given by Valentine as her
address in a deposition taken in that Texas litigation; and was used in a demand letter sent
to Valentine before this action was filed.

The manager of The UPS Store averred in an affidavit that “‘S. Bailey’ or Sandra
5

Bailey was an employee of The UPS Store as of June 2003.”

7
Procedure “require that the return receipt be signed by the individual upon whom service

is attempted.” Because it was undisputed that Valentine had not personally signed the

return receipt in this case, the court ruled that the attempted mail service had “failed.”

¶15 Snow was a special action that arose from a criminal case in which a summons

had been delivered by certified mail to the residential address Snow had listed on an arrest

questionnaire. Id. at 322, 903 P.2d at 630. The person who signed the return receipt lived

at that address and had been named as Snow’s “nearest relative/friend.” Id. That person,

however, apparently was not authorized to accept service or certified mail on his behalf.

The Snow court found that her signature was insufficient because Snow himself had not

signed the receipt. Construing Rule 3.4, Ariz. R. Crim. P., 16A A.R.S., the court stated that

“the return of the receipt is prima facie evidence of service only when the receipt is signed

by the party being served.” Id. at 324 n.2, 903 P.2d at 632 n.2. And, the court said, the

civil rule (Rule 4.2(c)) on which the criminal rule was based also “envisions that the party

being served receive service and sign the receipt.” Id.

¶16 Similarly relying on Snow, Valentine argues that, because she did not

personally sign the receipt, the attempted service by certified mail was ineffective under Rule

4.2(c). That argument and the trial court’s ruling, however, overlook basic principles of

agency law. “[A]n agent is ‘one who acts on behalf of another.’” Southeast Ariz. Med. Ctr.

v. Ariz. Health Care Cost Containment Sys., 188 Ariz. 276, 282, 935 P.2d 854, 860 (App.

1996), quoting In re John W. Murphey & Helen G. Murphey Trust, 169 Ariz. 443, 444, 819

P.2d 1029, 1030 (App. 1991). “An essential element of the principal-agent relationship

8
which carries a fiduciary responsibility is the ability of the agent to act on behalf of his

principal with third parties.” Equitable Life & Cas. Ins. Co. v. Rutledge, 9 Ariz. App. 551,

555, 454 P.2d 869, 873 (1969), citing Valley Nat’l Bank v. Milmoe, 74 Ariz. 290, 248 P.2d

740 (1952). As our supreme court has stated, “The law of agency is based on the principle

of qui facit per alium, facit per se, i.e., one acting by another is acting for himself.”

Gustafson v. Rajkovich, 76 Ariz. 280, 284, 263 P.2d 540, 543 (1953); see also In re

Coupon Clearing Serv., Inc., 113 F.3d 1091, 1099 (9th Cir. 1997) (“One of the chief

characteristics of an agency relationship is the ‘authority to act for and in the place of the

principal for the purpose of bringing him or her into legal relations with third parties.’”),

quoting Violette v. Shoup, 20 Cal. Rptr. 2d 358, 363 (Cal. Ct. App. 1993). Thus, when an

agent acts, as Valentine’s agent did here, it is as if the principal herself has acted.

¶17 Valentine has cited no authority, and we are aware of none, that somehow

alters or nullifies these general principles of agency law when service of process is at issue.

To be sure, the record does not reflect that Valentine expressly or specifically authorized

The UPS Store, or otherwise appointed an agent, to accept service of process on her behalf.

But Rule 4.2(c) allows service to be made by “any form of mail requiring a signed and

returned receipt.” By appointing The UPS Store, as her CMRA, to accept restricted delivery

mail on her behalf, without any restrictions or qualifications, Valentine made the CMRA her

actual agent for that purpose. Thus, as Barlage argues, “under the laws of agency defendant

Valentine did execute the certified mail receipt.”

9
¶18 Valentine contends, however, that the California Court of Appeals rejected

that same argument in Dill v. Berquist Construction Co., 29 Cal. Rptr. 2d 746 (Cal Ct.

App. 1994).6 She argues that “agents for one purpose cannot appropriately be viewed as

agents for all purposes.” Although that proposition is correct, it does not apply here because

Valentine’s CMRA served the very purpose for which it had been appointed.

¶19 Dill involved a California plaintiff serving an out-of-state corporate defendant

by certified mail. The court assumed the person who had signed the return receipt might

have been an agent of the defendant corporation, but still found the service ineffective. Id.

at 752. California’s procedural rule stated that a corporation must be served “by delivering

a copy of the summons and complaint to a corporate officer, a general manager, ‘or a person

authorized by the corporation to receive service of process.’” Id. at 749-50, quoting Cal.

Code Civ. Proc. § 416.10(b). Because the signee was not such a person, but at most, an

agent for accepting mail, the service failed. Id. at 752.

¶20 In contrast, Rule 4.2(c) does not require delivery to someone expressly

authorized to receive service, but rather, to “the person to be served.” The rule expressly

requires the serving party to aver, as Barlage did here, that the summons and pleading “were

in fact received by the party as evidence[d] by the receipt, a copy of which shall be attached

to the affidavit.” Ariz. R. Civ. P. 4.2(c)(3). Barlage’s affidavit included the signed receipt

as an attachment and otherwise complied with Rule 4.2(c). Because Valentine

6
Even if Valentine’s interpretation of Dill is correct, we of course would not be
bound by that case. See State ex rel. Ariz. Dep’t of Revenue v. Talley Indus., Inc., 182
Ariz. 17, 22, 893 P.2d 17, 22 (App. 1994).

10
unconditionally authorized her CMRA to accept certified mail on her behalf, the CMRA’s

acceptance of the summons and complaint delivered in that manner sufficiently evidenced

Valentine’s receipt of service.

¶21 At oral argument in this court, Valentine raised several arguments based on the

language of Rule 4.2(c) for the first time.7 First, Valentine emphasizes the affidavit-related

references in Rule 4.2(c) to the papers “in fact [having been] received by the party” and to

the affidavit constituting “prima facie evidence of personal service.” (Emphasis added.)

Valentine argues those references and the repeated use of the phrase, “the party being

served,” in Rule 4.2(c) reflect that attempted mail service is ineffective unless the party

himself or herself actually receives and personally signs for the papers. We reject that

argument, however, based on the agency principles discussed above. Valentine personally

signed the application that expressly authorized her CMRA, without exception or limitation,

to accept certified mail on her behalf. Absent any prohibition in Rule 4.2(c) against that

type of arrangement or against such an agent’s validly accepting mail service on behalf of

“the party being served,” we cannot engraft such a qualification into the rule.

¶22 Second, Valentine notes that Rule 4.2(c) permits mail service only “[w]hen

the whereabouts of a party outside the state is known” and suggests that Barlage had no such

knowledge. But, unlike Rule 4.2(f), which is framed in terms of the present and last known

7
“Generally, issues and arguments raised for the first time at oral argument on appeal
are untimely and deemed waived.” Mitchell v. Gamble, 207 Ariz. 364, ¶ 16, 86 P.3d 944,
949-50 (App. 2004). But that is a procedural rule that courts do not automatically apply,
particularly when interpretation of a statute or rule is at issue. Id. Therefore, we address
Valentine’s belated contentions.

11
“residence” of the person to be served, the term “whereabouts” in Rule 4.2(c) is broader and

less specific. In his affidavit below, Barlage’s counsel stated without contradiction that,

although the Dallas address “was a UPS mailbox and not [Valentine’s] ‘residence,’ it could

be considered her ‘whereabouts,’ particularly since she use[d] it on letterhead, on her

driver’s license, in the criminal court system, in other litigation, and at her sworn deposition”

in another case. We agree.

¶23 At oral argument, Valentine also voiced some due process concerns that would

arise if service by mail through a CMRA were deemed effective. See Dixon v. Picopa

Constr. Co., 160 Ariz. 251, 261, 772 P.2d 1104, 1114 (1989) (“Due process commands that

‘notice be reasonably calculated, under all the circumstances, to apprise interested parties

of the pendency of the action . . . .’”), quoting Mullane v. Cent. Hanover Bank & Trust,

339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950). Those concerns are not

well founded. As in Dixon, the record reflects that “under the circumstances here [Barlage]

sent notice ‘reasonably calculated’ to apprise [Valentine] of the impending action against

[her].” Id. at 262, 772 P.2d at 1115, quoting Mullane, 359 U.S. at 314, 70 S. Ct. at 657,

94 L. Ed. at 873. As previously noted, Valentine regularly used the Dallas address and

expressly granted actual authority to her CMRA to accept certified mail there on her behalf.

¶24 Arizona courts have recognized effective service of process even on an

ostensible (or apparent) agent in the corporate context. See Koven, 128 Ariz. at 322, 625

P.2d at 911 (service on corporation’s purported officer, who had resigned two years earlier

and who apparently did not inform corporation of service or forward papers to it, deemed

12
effective). Therefore, we cannot say that a certified mailing, to a current address, that was

accepted by an actual agent was not “reasonably calculated” to provide notice.

¶25 Moreover, under the circumstances presented here, it would also be anomalous

for effective service to require a party’s actual receipt of papers and personal signature on

the receipt when the law recognizes and permits constructive notice of service in many

different settings. For example, in several contexts, effective service of process in Arizona

does not depend on actual, personal receipt of the summons and complaint by the party to

be served. See A.R.S. § 10-504 (service of process on corporation may be on its statutory

agent or pursuant to civil procedure rules); Ariz. R. Civ. P. 4.1(d), 16 A.R.S., Pt. 1

(permitting service at individual’s dwelling or usual place of abode on “some person of

suitable age and discretion then residing therein” or on “an agent authorized by appointment

or by law to receive service of process”); Ariz. R. Civ. P. 4.1(l) (service on Corporation

Commission is deemed personal service on domestic corporation if corporation does not

have officer or agent in Arizona upon whom process may be served); Ariz. R. Civ. P. 4.1(n)

(permitting service by publication under certain circumstances); Ariz. R. Civ. P. 4.2(f)

(same). And, when service on a corporation is made on its statutory agent, the service is

deemed complete at that time, even when the agent does not forward the summons and

complaint to the principal. See W. Coach Corp. v. Mark V Mobile Homes Sales, Inc., 23

Ariz. App. 546, 549, 534 P.2d 760, 763 (1975) (trial court erred in setting aside default

judgment absent showing that statutory agent’s failure to forward summons and complaint

13
to principal had resulted from excusable neglect); see also Postal Benefit Ins. Co. v.

Johnson, 64 Ariz. 25, 32, 165 P.2d 173, 177 (1946).

¶26 In sum, Barlage’s service of the summons and complaint by certified mail

satisfied the requirements of Rule 4.2(c). Because that service was facially valid, the trial

court had no “legal justification for the vacation of judgment” and, therefore, abused its

discretion in basing its ruling on the ground that it did. Cockerham, 127 Ariz. at 233, 619

P.2d at 742; see also Koven, 128 Ariz. at 324, 625 P.2d at 913 (“[T]he trial court erred, as

a matter of law, in ruling that it had been without jurisdiction to enter the default

judgment.”).

¶27 This, however, does not end our inquiry. As noted above, Rule 4.2(c) states

that the required affidavit “shall be prima facie evidence of personal service.” Prima facie

evidence of a particular fact raises a rebuttable presumption of, but does not conclusively

establish, that fact. See Wallace Imports, Inc. v. Howe, 138 Ariz. 217, 224-25, 673 P.2d

961, 968-69 (App. 1983) (“certificate of title is merely prima facie evidence of the title to

a motor vehicle,” and “such evidence may be rebutted”); State v. Rich, 115 Ariz. 119, 121,

563 P.2d 918, 920 (App. 1977) (A.R.S. § 28-701(B), which prescribes certain speeds that,

if exceeded, constitute “prima facie evidence” of unreasonable speed, is “rule[] of evidence

and not rule[] of substantive law” and merely “raise[s] rebuttable presumptions, which may

be overcome by evidence”); cf. Andrews v. Blake, 205 Ariz. 236, n.3, 69 P.3d 7, 13-14 n.3

(2003) (presumption that properly mailed and addressed letter will reach addressee would

have been rebutted by denial of receipt in purchase option case).

14
¶28 Because Barlage’s affidavit constituted “prima facie evidence of personal

service” under Rule 4.2(c) and thereby created a presumption of that fact, the issue is

whether Valentine adequately rebutted the presumption. “Service of process can be

impeached only by clear and convincing evidence.” Gen. Elec. Capital Corp. v.

Osterkamp, 172 Ariz. 191, 194, 836 P.2d 404, 407 (App. 1992). In her affidavit filed in

support of her motion to set aside the default judgment,8 Valentine averred that she did not

know, had never spoken with, and was unrelated to S. Bailey, the UPS Store employee who

had signed the return receipt. Valentine also stated that S. Bailey “ha[d] never been

authorized to accept service of process for [her]” and had “never told [Valentine] about any

type of complaint which she received.” Finally, Valentine averred she “first became aware

of this lawsuit against [her] on December 10, 2003, and immediately sought advice of

counsel.”9

8
At oral argument in this court, Barlage contended Valentine’s affidavit was not
properly notarized because it lacked a notary’s seal and, therefore, was invalid. In a
footnote in his response to Valentine’s motion to set aside the default judgment, Barlage
moved to strike Valentine’s affidavit on that ground. The trial court never ruled on that
request, and Barlage did not pursue it further. Because Barlage failed to present or argue
this issue in his briefs, and because he cites no authority for his position, we do not address
it. See Ariz. R. Civ. App. P. 13(a)(5), (6), 17B A.R.S.; Mitchell, 207 Ariz. 364, ¶ 16, 86
P.3d at 949-50. In any event, even if Valentine’s affidavit had been properly notarized, see
A.R.S. § 41-313(B)(3), it would not alter the outcome.
9
In her affidavit, Valentine did not expressly state that she had not personally received
the summons and complaint before that time. To the extent the affidavit implies that,
however, Barlage presented contrary evidence that she, in fact, had previously received the
papers. The trial court found the registered mail service ineffective as a matter of law and,
therefore, did not comment or rule on the conflicting evidence, nor did it weigh the veracity
of the parties’ respective positions. In any event, our decision does not rest on any
evidentiary conflict that, if material, would have been for the trial court to resolve in the first

15
¶29 We conclude that Valentine did not adequately rebut the “prima facie evidence

of personal service” created by Barlage’s affidavit of service by registered mail. Ariz. R. Civ.

P. 4.2(c). In her affidavit, Valentine did not dispute the accuracy or repeated use of her

Dallas mailing address. Similarly, she did not dispute that she had expressly and

unconditionally authorized her CMRA to accept certified mail at that address on her behalf.

Nor did Valentine question the fact that her CMRA actually had received via registered mail

the summons and complaint and had signed for that receipt accordingly. Because

Valentine’s personal receipt of the papers and signature on the return receipt were not

required under the circumstances presented here, the facts set forth in her affidavit, even if

true, are immaterial and insufficient to rebut the presumption of effective mail service under

Rule 4.2(c). Therefore, the trial court erred in setting aside the default judgment based on

service and jurisdictional grounds.

¶30 Finally, we note that Valentine also sought relief pursuant to Rule 60(c), Ariz.

R. Civ. P., 16 A.R.S., Pt. 2. In view of its ruling on service, the trial court did not expressly

evaluate or rule on the various factors under Rule 60(c).10 Resolution of any such issues is

instance. See Johnson v. Brimlow, 164 Ariz. 218, 220, 791 P.2d 1101, 1103 (App. 1990).
10
The trial court properly addressed the service-of-process issues, which bear on
personal jurisdiction, before addressing any relevant issues under Rule 60(c). See Marquez
v. Rapid Harvest Co., 99 Ariz. 363, 365, 409 P.2d 285, 287 (1965) (“[T]he trial court
should have determined the question of its jurisdiction before taking any other action. If the
court had no jurisdiction because of lack of proper service on the defendant any judgment
would be void, and there would be no necessity to consider a question of setting it aside on
the basis of excusable neglect.”).

16
best left to the trial court in the first instance. See Koven, 128 Ariz. at 324, 625 P.2d at 913.

We therefore remand the case to the trial court for further proceedings.

DISPOSITION

¶31 The order vacating the default judgment in favor of Barlage is reversed, and

the case is remanded for further proceedings consistent with this decision.

____________________________________
JOHN PELANDER, Chief Judge

CONCURRING:

____________________________________
PHILIP G. ESPINOSA, Judge

____________________________________
JOSEPH W. HOWARD, Judge

17