Opinion
1 CA-CV 11-0625
04-18-2013
THE BANK OF NEW YORK MELLON, Plaintiff/Appellee, v. KEITH OLDENKAMP, Defendant/Appellant.
Keith Oldenkamp Appellant in Propria Persona Tiffany & Bosco PA by Leonard J. McDonald, Jr. David W. Cowles Attorneys for Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 28, Arizona Rules of
Civil Appellate Procedure
Appeal from the Superior Court in Maricopa County
Cause No. CV2011-007914
The Honorable Benjamin E. Vatz, Judge Pro Tempore
AFFIRMED
Keith Oldenkamp
Appellant in Propria Persona
Phoenix Tiffany & Bosco PA
by Leonard J. McDonald, Jr.
David W. Cowles
Attorneys for Appellee
Phoenix THUMMA, Judge ¶1 In this forcible detainer action, Keith Oldenkamp appeals from the superior court's judgment in favor of The Bank of New York Mellon (Bank). Oldenkamp challenges the superior court's denial of his "Emergency Motion For Relief From Judgment Pursuant to Rule 15(a)(3) And (10), Rules of Procedure For Eviction Actions (RPEA) and To Quash the Writ of Restitution Pursuant to Rules 14(c), RPEA" (Rule 15 Motion). Finding no reversible error, the judgment is affirmed.
FACTUAL AND PROCEDURAL HISTORY
On appeal, this court "view[s] the facts in the light most favorable to sustaining the trial court's judgment." Southwest Soil Remediation, Inc. v. City of Tucson, 201 Ariz. 438, 440, ¶ 2, 36 P. 3d 1208, 1210 (App. 2001).
¶2 In March 2011, Bank purchased at a trustee's sale a residential lot, including a house that Oldenkamp leased and occupied. Bank sent the owner/occupants written notice of the purchase, including a demand that the occupants either vacate the property or provide documentation regarding any existing lease. When Oldenkamp failed to do either, Bank filed this action pursuant to Arizona Revised Statutes (A.R.S.) sections 12-1173.01, et seq., listing as a named defendant the previous owner and as fictitious defendants the occupants/residents of the property. Oldenkamp was never listed as a party by name, but fell within the definition of the fictitious defendants. ¶3 Bank unsuccessfully attempted to effectuate personal service of process, including by attempting service at the property at 7:56 p.m. on April 13, 2011. Accordingly, on Bank's motion, the court allowed service by alternative means. Bank filed a process server's affidavit showing alternative service was completed on April 26, 2011 by knocking at the house, "conspicuously post[ing]" the relevant documents on the main entrance of the house and mailing, by certified mail, the documents to the house. Included in the materials served was a summons for a May 5, 2011 forcible detainer hearing, listing the time and location for that hearing, adding "that if you do not then and there personally appear and answer Plaintiff's Complaint, Judgment by default will be taken against you." ¶4 When no defendants appeared at the May 5, 2011 hearing, the superior court entered judgment by default, finding the named defendant guilty of forcible detainer, terminating each defendant's right to possession of the property and ordering the named defendant to immediately surrender the property to Bank and, if that defendant failed to do so, authorizing the Clerk of Court to issue a Writ of Possession on or after June 21, 2011. The judgment "dismiss[ed] the fictional defendants named in the Complaint." ¶5 On June 23, 2011, Oldenkamp filed a "Notice of Filing Lessee/Occupant's 3-Year Lease and Request for Judicial Notice of the 'Protecting Tenants at Foreclosure Act.'" Apparently construing the notice as a motion, the court summarily denied it for failure to comply with the Arizona Rules of Civil Procedure. On July 29, 2011, after the Clerk of Court issued a Writ of Restitution, Oldenkamp filed an "Emergency Motion to Quash Writ of Restitution." The court stayed execution of the writ until August 8, 2011. ¶6 On August 8, 2011, Oldenkamp filed the Rule 15 Motion alleging, as relevant here, improper alternative service of process by Bank. The Rule 15 Motion alleged that Oldenkamp never received the Notice of Demand for Possession, that the order allowing alternative service was based on a process server's affidavit that was false and that Bank's attorneys knew the affidavit to be false. In support of the Rule 15 Motion, Oldenkamp filed three affidavits stating Oldenkamp was at the house at 7:56 p.m. on April 13, 2011 and no service was attempted. Oldenkamp's affidavit declared that he never received the documents via certified mail and that Bank's lawyers' confirmed the certified mail had been returned as "undeliverable." Oldenkamp admitted, however, that he received a "legal document taped to the front door" of the property in late April 2011. ¶7 After hearing argument, the superior court denied Oldenkamp's Rule 15 Motion. Oldenkamp filed a timely appeal and this court has jurisdiction under Article 6, Section 9, of the Arizona Constitution and A.R.S. § 12-2101(A)(2).
Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated.
DISCUSSION
I. Standard of Review.
¶8 "In reviewing a trial court's decision on a motion to set aside a judgment this court must determine whether there has been a clear abuse of discretion." Goglia v. Bodnar, 156 Ariz. 12, 16, 749 P.2d 921, 925 (App. 1987). "A court abuses its discretion if it commits an error of law in reaching a discretionary conclusion, it reaches a conclusion without considering the evidence, it commits some other substantial error of law, or 'the record fails to provide substantial evidence to support the trial court's finding.'" Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27, 156 P.3d 1149, 1155 (App. 2007)(quoting Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982)).
II. Service of Process.
¶9 Oldenkamp alleges he was not properly served pursuant to the Arizona Rules of Civil Procedure (Rules) 4.1 and the Arizona Rules of Procedure for Eviction Actions (ARPEA) 5(f). Oldenkamp argues that Bank failed to attempt personal service or mail a certified copy of the relevant documents to Oldenkamp. Oldenkamp further argues that Bank's motion to allow service by alternative means was based on an affidavit of a process server containing false statements that Bank knew to be false. ¶10 Service of process was required under Rules 4.1 or 4.2. ARPEA 5(f). Rule 4.1(d) directs that service "shall be effected by delivering a copy of the summons and of the pleading to that individual personally or by leaving copies . . . at the individual's [home] with some person of suitable age and discretion." If such service "proves impracticable," however, the court may order service by alternative means. Rule 4.1(k). ¶11 The record shows that Bank attempted personal service under Rule 4.1(d). When such efforts were unsuccessful, Bank moved to effect service through alternative means, attaching an affidavit of the process server, who stated under oath he "believe[d] the occupants [of the property] to be avoiding service." The court granted Bank's request to effect service through alternative means, and the Bank did so on April 26, 2011, as described above. ¶12 The affidavits Bank filed in moving to effect service through alternative means and Oldenkamp filed in conjunction with the Rule 15 Motion regarding the April 13, 2011 attempt at personal service differ in ways that may not be reconcilable. Oldenkamp's affidavit, however, admits that he received "a legal document taped to the front door" of his home in late April 2011. The record indicates this "legal document" was, in fact, the same documents "conspicuously posted" on the main entrance of the house by Bank's process server on April 26, 2011. This service gave Oldenkamp actual written notice of the May 5, 2011 hearing and informed him that a default judgment would be taken against him if he did not appear. Notwithstanding this service and resulting notice of the hearing, Oldenkamp failed to appear on May 5, 2011, resulting in the entry of default judgment. ¶13 "It has long been recognized, as a principle of law, that the purpose of process is to give the party to whom it is addressed actual notice of the proceedings against him." Scott v. G. A. C. Fin. Corp., 107 Ariz. 304, 305, 486 P.2d 786, 787 (1971). On April 26, 2011, Oldenkamp was served with documents giving him proper notice of the May 5, 2011 hearing that also specified the potential consequences for failing to appear at that hearing. That such notice was through alternative means of service is of no event; Oldenkamp was served in a way that gave him notice of the proceedings against him, yet he still failed to appear, resulting in entry of default judgment. Given this actual notice, Oldenkamp's arguments regarding the method of service fail. ¶14 As to the other Rule 15 Motion issues that may have been preserved for appeal, the record does not include a transcript from the August 19, 2011 hearing where the parties argued that motion. As appellant, Oldenkamp bears the responsibility to ensure that the record on appeal is complete. See State v. Zuck, 134 Ariz. 509, 512-13, 658 P.2d 162, 165-66 (1982); see also State v. Wilson, 179 Ariz. 17, 19 n.1, 875 P.2d 1322, 1324 n.1 (App. 1993) (noting failure to provide relevant transcripts may result in presumption that missing material supports the superior court's actions). Because Oldenkamp failed to provide the transcript of the hearing on his Rule 15 Motion, the record is presumed to support the superior court's rulings. Rapp v. Olivo, 149 Ariz. 325, 330, 718 P.2d 489, 494 (App. 1986). Nothing in the record before this court rebuts this presumption. ¶15 Both Oldenkamp and Bank seek attorneys' fees on appeal. Because he is not the prevailing party, Oldenkamp's request for fees on appeal is denied. The Bank's request requires a finding by the superior court that Oldenkamp was guilty of forcible detainer. See A.R.S. § 12-1178(A). The default judgment, however, makes no such finding and, instead, "dismiss[ed] the fictional defendants [Oldenkamp] named in the Complaint." Accordingly, because it has not shown an entitlement to attorneys' fees, Bank's request for fees on appeal is denied.
On appeal, Oldenkamp also argues a lack of due diligence and good faith of Bank's attorneys pursuant to ARPEA 4(a) and (b) and that the pleadings were not sufficient pursuant to ARPEA 13(a)(1). To the extent these arguments relate to service of process, they were at least arguably raised before the superior court and are addressed here. To the extent they are independent arguments, they were not raised before the superior court and are deemed waived on appeal. Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 503, 733 P.2d 1073, 1086 (1987) ("an appellate court will not consider issues not raised in the trial court").
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CONCLUSION
¶16 The superior court's judgment is affirmed. The parties shall bear their own attorneys' fees incurred on appeal. Bank may recover its costs on appeal contingent on compliance with ARCAP 21.
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SAMUEL A. THUMMA, Presiding Judge
CONCURRING: ________________
MICHAEL J. BROWN, Judge
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DIANE M. JOHNSEN, Judge