Bucks Financial v. Overley ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
BUCKS FINANCIAL, LLC, Plaintiff/Appellee,
v.
CANDY R. OVERLEY, Defendant/Appellant.
No. 1 CA-CV 22-0491
FILED 8-29-2023
Appeal from the Superior Court in Maricopa County
No. CV2022-005939
The Honorable Richard F. Albrecht, Judge pro tempore
AFFIRMED
COUNSEL
ZBS Law LLP, Phoenix
By Joseph J. Tirello
Counsel for Plaintiff/Appellee
Candy R. Overley, Glendale
Defendant/Appellant
BUCKS FINANCIAL v. OVERLEY
Decision of the Court
MEMORANDUM DECISION
Judge Michael S. Catlett delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Maria Elena Cruz joined.
C A T L E T T, Judge:
¶1 Since 2015, Bucks Financial, LLC (“Bucks”), Candy Overley
(“Overley”), and her now deceased spouse Vance Taylor have, in fits and
starts, litigated over property in Glendale. After acquiring a trustee’s deed,
Bucks sued Overley in 2022 for forcible entry and detainer (“FED”). The
superior court granted judgment to Bucks. We affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On April 29, 2015, Bucks recorded a trustee’s deed on the
Glendale property following a trustee’s sale. Nearly seven years later, on
April 22, 2022, Bucks sent a notice to vacate to Vance Taylor and all others
in possession. On May 11, 2022, Bucks filed a FED action, naming “Vance
Taylor, Occupants and Parties-In-Possession” as parties.
¶3 Service of process was not easy. A process server attempted
service at the property’s address on May 13 at 2:03 p.m., May 14 at 8:00 a.m.,
and May 15 at 7:16 p.m. but documented there was “no answer at the door,
blinds closed . . . [and] no vehicles present.” Bucks, therefore, filed a motion
requesting an order for alternative means of service. The court held a
hearing, which Bucks and Overley attended. Overley claimed she was the
owner of the property and became aware of the complaint “by accident”
and was only there to “protect [her] rights” because she was not served or
named in the lawsuit. The court indicated to Overley that her appearance
eliminated any question about the propriety of service.
¶4 The court directed Overley to answer the complaint, but she
moved to dismiss for lack of jurisdiction, rearguing the service issues.
Overley also attached an exhibit containing arguments against the merits of
the FED action. The court instructed Bucks to make another attempt at
service, but to serve by alternative means if unsuccessful—by mailing the
complaint to the property’s address.
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BUCKS FINANCIAL v. OVERLEY
Decision of the Court
¶5 After the hearing, a process server tried service a fourth time.
When again unsuccessful, the process server posted the complaint and
other documents at the main entrance and mailed a copy to the address.
The court later determined Bucks properly served Overley and held a
hearing on the FED complaint. The court concluded Bucks’ trustee’s deed
was sufficient evidence to possess the property and entered judgment for
Bucks. Overley filed a motion for new trial, which the superior court
denied.
¶6 Overley timely appealed. We have jurisdiction under A.R.S.
§ 12-2101(A)(1).
DISCUSSION
I. Service
¶7 Overley argues Bucks did not properly serve her, and she
made only a special appearance. We defer to the superior court’s factual
findings unless they are clearly erroneous, but whether a party has been
properly served “is a legal question of personal jurisdiction which we
review de novo.” Ruffino v. Lokosky, 245 Ariz. 165, 168 ¶ 9 (App. 2018).
¶8 The requirements for service of process in a FED action, for a
party located in Arizona, are in Arizona Rule of Civil Procedure 4.1. See
Ariz. R. P. Eviction Actions 5(e). Rule 4.1(d) allows for service of an
individual by (1) delivering to the individual personally; (2) leaving a copy
at the individual’s dwelling with another resident of suitable age; or (3)
delivering a copy to an authorized agent. Ariz. R. Civ. P. 4.1(d). If Rule
4.1(d) service is impracticable, the court may allow service by alternative
means. Ariz. R. Civ. P. 4.1(k)(1). Alternative service can be completed by
mailing the summons, pleading, and court order to the individual’s last
known residential address. Ariz. R. Civ. P. 4.1(k)(2).
¶9 This Court has established general parameters for when
service is impracticable in a FED action. Making only a single attempt at
service is insufficient without evidence of evasion, Ariz. Real Est. Inv., Inc.
v. Schrader, 226 Ariz. 128, 130 ¶ 11 (App. 2010), but making five attempts,
on different days and times, shows impracticability “[g]iven the speedy
nature of a forcible detainer proceeding[.]” Bank of N.Y. Mellon v. Dodev,
246 Ariz. 1, 10 ¶ 32 (App. 2018).
¶10 The superior court did not err in finding impracticability here.
Bucks’ process server attempted service at the property on three
consecutive days, at three different times—in the morning, in the afternoon,
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BUCKS FINANCIAL v. OVERLEY
Decision of the Court
and in the evening. Bucks then asked to use alternative means, which the
court permitted but not until after a fourth unsuccessful attempt. Overley
was present for that order. After a fourth unsuccessful attempt (during
which documents were left at the property), Bucks, through a process
server, mailed Overley the required documents. This all was sufficient to
satisfy the service of process requirements.
¶11 Even if we thought the court erred on alternative service,
Overley waived service by appearing and then making substantive
arguments in a motion to dismiss. See Schrader, 226 Ariz. at 130 ¶ 7 (“[A]ny
action taken to assert the defense of insufficiency of service of process must
be limited in scope and narrowly argued because the defense is waived by
filing a responsive pleading or by seeking affirmative relief.”). While
Overley put her merits arguments in an attachment labeled “Exhibit A,” we
prefer substance over form in this area. See Adams v. Valley Nat’l Bank of
Ariz., 139 Ariz. 340, 342 (App. 1984) (“[C]ourts prefer to decide each case
upon its merits rather than to dismiss summarily on procedural
grounds[.]”). Overley waived any subsequent argument about insufficient
service and eliminated any prejudice by appearing and making substantive
arguments against the FED claim. Kline v. Kline, 221 Ariz. 564, 571 ¶ 22 n.10
(App. 2009) (“Collins argued the merits of his client’s position and Husband
cannot avoid the consequences of that appearance by resort to the jargon of
‘special appearances.’”); see id. ¶ 21 (a technical defect in service did not
prejudice defendant because he had actual notice of the action).
II. Statute of Limitations
¶12 Overley next argues Bucks exceeded the statute of limitations
by filing its FED complaint seven years after the trustee’s sale. We review
legal compliance with the statute of limitations de novo. Carrington Mortg.
Servs. LLC v. Woods, 242 Ariz. 455, 456 ¶ 5 (App. 2017).
¶13 Overley incorrectly identifies when a FED cause of action
accrues. She asserts that happens once there is a trustee’s sale. Yet,
according to statute, the starting point is “the commencement of the forcible
entry or detainer.” A.R.S. § 12-542(6). And that occurs when “a person . . .
retains possession of . . . real property after [s]he receives written demand
of possession” that “the property has been sold through a trustee’s sale
under a deed of trust[.]” A.R.S. § 12-1173.01(A)(2). Put more succinctly, the
statute of limitations starts when the party with a trustee’s deed makes
written demand for possession. Woods, 242 Ariz. at 457 ¶ 9 (“[F]orcible
detainer did not accrue until it served written demand of possession[.]”).
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BUCKS FINANCIAL v. OVERLEY
Decision of the Court
¶14 Although Bucks recorded a trustee’s deed on April 29, 2015,
and there was litigation between the parties dating to 2015, Bucks did not
send a notice to vacate until April 22, 2022. The time for Bucks to seek FED
relief began then. Bucks filed this action well within two years. See A.R.S.
§ 12-542. Overley’s statute of limitations defense fails.
III. Merits of Bucks’ Title
¶15 Overley lastly argues the court could not grant FED relief
because she questioned whether Bucks had a junior or senior lien on the
property. We review the court’s application of the FED statutes de novo.
Woods, 242 Ariz. at 457 ¶ 10.
¶16 FED actions are designed for a limited purpose—to determine
“the right of actual possession.” A.R.S. § 12-1177(A). “[T]he merits of title
shall not be inquired into.” A.R.S. § 12-1177(A). By limiting the scope of
FED actions, Arizona law “afford[s] a summary, speedy and adequate
remedy for obtaining possession of the premises[.]” Olds Bros. Lumber Co.
v. Rushing, 64 Ariz. 199, 204 (1946). Overley’s superiority of title argument
goes beyond the scope of a FED action because issues regarding title are “to
be decided in a suit for ejectment.” Taylor v. Stanford, 100 Ariz. 346, 348
(1966). Our courts have routinely rejected Overly’s argument because it
“would convert a forcible detainer action into a quiet title action and defeat
its purpose as a summary remedy.” Curtis v. Morris, 186 Ariz. 534, 535
(1996).
¶17 Bucks provided a copy of its trustee’s deed to Overley in a
written notice to vacate. When Overley remained in possession, she was
guilty of forcible detainer under A.R.S. § 12-1173.01(A)(2). The superior
court correctly issued judgment in Bucks’ favor. See Rushing, 64 Ariz. at 206(“Under no circumstances could . . . the Superior Court have determined
the title to the premises in a forcible entry or detainer action . . . . that matter
should be heard and determined in an action to quiet title or an action of
ejectment.”). But the FED judgment and this appeal “relate[] only to
possessory rights and the determination thereof is without prejudice to any
other rights which [Overley] may have.” Fenter v. Homestead Dev. & Tr. Co.,
3 Ariz. App. 248, 252 (1966).
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BUCKS FINANCIAL v. OVERLEY
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CONCLUSION
¶18 We affirm the superior court’s judgment and deny Overley’s
requests for fees and costs. As the prevailing party, we grant Bucks’ request
for costs pursuant to A.R.S. § 12-341 upon compliance with Arizona Rule of
Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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