Longariello v. Aura

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT
PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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
STEVE J. LONGARIELLO, Plaintiff/Appellant,
v.
AURA AT MIDTOWN/ALLIANCE RESIDENTIAL, LLC,
Defendant/Appellee.
No. 1 CA-CV 15-0027
FILED 2-23-2016
Appeal from the Superior Court in Maricopa County
No. CV2014-000205
The Honorable Benjamin E. Vatz, Commissioner (Retired)
AFFIRMED
COUNSEL
Steve J. Longariello, Phoenix
Plaintiff/Appellant
Law Offices of Scott M. Clark PC, Phoenix
By Christopher R. Walker
Counsel for Defendant/Appellee
LONGARIELLO v. AURA et al.
Decision of the Court
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Maurice Portley joined.
N O R R I S, Judge:
¶1 Appellant Steve J. Longariello (“Longariello”) challenges the
superior court’s dismissal of his complaint against Appellant Aura at
Midtown/Alliance Residential, LLC (“Alliance”), arguing it improperly
found he had failed to complete proper service on Alliance. We reject this
argument and affirm the superior court’s dismissal of his complaint.
FACTS AND PROCEDURAL BACKGROUND
¶2 Longariello’s claims against Alliance began when, in a justice
court proceeding, Alliance sought to evict him from his apartment for
failure to pay rent. Longariello counterclaimed against Alliance seeking,
among other things, a full refund of all rent paid after December 1, 2005,
and punitive damages. The justice court entered judgment for Alliance and
struck Longariello’s counterclaim.
¶3 Longariello then filed a complaint in superior court against
“Aura at Midtown/Alliance Residential” seeking to overturn the justice
court’s judgment, reinstate his counterclaim, and recover personal property
he alleged was still in the apartment. Longariello served his complaint on
the apartment complex’s business manager. Alliance specially appeared to
contest service of process, arguing that the business manager lacked
authority to accept service under Arizona Rule of Civil Procedure 4.1(i).
The superior court granted Alliance’s motion and struck the Sheriff’s
declaration of service. Longariello then moved for entry of default
judgment against Alliance, which the superior court struck.
¶4 After the 120-day period to complete service under Rule 4(i)
expired, Alliance moved to dismiss for failure to serve. Ariz. R. Civ. P.
12(b)(5). The superior court granted Alliance’s motion. Longariello filed
additional motions to obtain a default judgment against Alliance. The
superior court denied these motions and eventually dismissed
Longariello’s complaint without prejudice for failure to serve.
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LONGARIELLO v. AURA et al.
Decision of the Court
JURISDICTION
¶5 We have an independent duty to determine whether we have
jurisdiction over an appeal. Baker v. Bradley, 231 Ariz. 475, 478, ¶ 8, 296 P.3d
1011, 1014 (App. 2013). An order of dismissal without prejudice is generally
not appealable unless the statute of limitations would prevent refiling the
claim or the dismissal otherwise determines the action. Kool Radiators, Inc.
v. Evans, 229 Ariz. 532, 534 n.3, ¶ 8, 278 P.3d 310, 312 n.3 (App. 2012); see also
Ariz. Rev. Stat. (“A.R.S.”) § 12-2101(A)(3) (Supp. 2015) (orders “affecting a
substantial right made in any action when the order in effect determines the
action and prevents judgment from which an appeal might be taken” are
appealable).
¶6 Reading Longariello’s complaint liberally, he alleged two
claims: breach of an oral lease and conversion of his personal property. The
limitations period is three years for breach of an oral contract and two years
for conversion. A.R.S. §§ 12-543(1) (2003), 12-542(5) (2003). The justice court
entered judgment against Longariello on December 24, 2013. The statute of
limitations therefore has run on Longariello’s conversion claim, and we
have jurisdiction over this appeal. A.R.S. § 12-2101(A)(1).
DISCUSSION
I. Longariello Did Not Establish Proper Service on Alliance.
¶7 Longariello argues the superior court improperly found he
had failed to serve Alliance. Rule 4.1(i) requires “delivering a copy of the
summons and of the pleading to a partner, an officer, a managing or general
agent, or to any other agent authorized by appointment or by law to receive
service of process.” Proper service of process is necessary for the court to
have jurisdiction over a defendant. Koven v. Saberdyne Sys., Inc., 128 Ariz.
318, 321, 625 P.2d 907, 910 (App. 1980).
¶8 Alliance presented affidavit evidence establishing the
business manager was not authorized to accept service. Longariello offered
no evidence to refute that evidence. Accordingly, on this record, the
superior court did not improperly strike the declaration of service. It also
properly dismissed Longariello’s complaint without prejudice when he
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LONGARIELLO v. AURA et al.
Decision of the Court
failed to complete service within the 120-day period. 1 Ariz. R. Civ. P. 4(i);
4.1(i).
II. Longariello Was Not Entitled to a Default Judgment.
¶9 Longariello also contends the superior court should not have
denied his applications for default judgment, but does little more on appeal
than point to the applications themselves. Because he has failed to develop
this argument, we conclude he has waived this issue. Polanco v. Indus.
Comm’n of Ariz., 214 Ariz. 489, 491 n.2, ¶ 6, 154 P.3d 391, 393 n.2 (App. 2007).
In any event, Longariello was not entitled to a default judgment given he
had failed to serve Alliance.
¶10 Longariello also argues we should consider a hearing
transcript concerning one of his default judgment applications. It is unclear
what Longariello believes the transcript would establish. Nevertheless,
Longariello did not include the transcript in the record on appeal, although
it was his responsibility to do so.2 ARCAP 11(c)(1)(A), (B). We therefore
presume the transcript would have supported the superior court’s rulings.
Baker v. Baker, 183 Ariz. 70, 73, 900 P.2d 764, 767 (App. 1995). 3
1We also reject Longariello’s argument that he did not receive
Alliance’s motion contesting service. The motion included a mailing
certificate listing the same address Longariello had listed on his complaint,
and service is complete upon mailing. Ariz. R. Civ. P. 5(c)(2)(C). Although
Longariello argued in the superior court that he had not received the
motion, he presented no evidence supporting that argument.
2Longariello applied to the superior court for a waiver or
deferral of transcript preparation fees in December 2014. The superior court
did not rule on Longariello’s application. Longariello had more than a year
in which to petition the superior court for a ruling on his application while
this appeal was pending. He did not do so. We therefore presume the
superior court denied his application. Cf. State v. Hill, 174 Ariz. 313, 323,
848 P.2d 1375, 1385 (1993) (“A motion that is not ruled on is deemed denied
by operation of law.”).
3Longarielloalso argues the superior court was prejudiced
against him. We reject this argument. The record does not reflect any
prejudice. In re Aubuchon, 233 Ariz. 62, 66, ¶ 14, 309 P.3d 886, 890 (2013)
(“We presume that a judge is impartial, and ‘the party seeking recusal must
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LONGARIELLO v. AURA et al.
Decision of the Court
CONCLUSION
¶11 We affirm the superior court’s order of dismissal. We award
Alliance its costs incurred on appeal contingent upon its compliance with
Arizona Rule of Civil Appellate Procedure 21.
:ama
prove bias or prejudice by a preponderance of the evidence.’” (Citation
omitted)).
5