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STATE OF ARIZONA
DIVISION ONE
AFFIRMED
and
N O R R I S, Judge
¶1 Plaintiff/Appellant Olive Green Villas Homes
He lived in the house with his wife, Estella Bastida,1 and their
1
During a hearing, Cruz’s counsel noted Cruz and
Bastida were married by common law, and Arizona does not
recognize common law marriage. Cruz and Bastida’s relationship
is not at issue in this appeal.
2
¶3 On January 2, 2004, Olive Green filed a complaint (the
June 2005, a Sheriff’s Deputy evicted Cruz and his family from
2
Excess Equities, L.L.C. is not a party to this appeal.
3
proceeding, default judgment, Sheriff’s sale and Assignment of
deputy when the deputy came to evict him. At that time, Cruz
Sheriff’s sale.
3
We also note that on November 9, 2005, months after
the Sheriff’s deputy evicted Cruz and his family, Olive Green
provided both a third and fourth notice, on the same day, that
Cruz was violating Association rules by hanging a blanket over a
window, and threatened to assess $300 in fees for the violation
if not corrected within 10 days.
4
¶7 In response, Olive Green asserted Cruz’s motion was
untimely under Rule 60(c),4 and that Cruz had been served with a
Bastida. Cruz and Bastida both asserted Bastida had not been
served with the Summons and Complaint. They stated they were
not home at the time the process server claimed to have served
4
Olive Green also filed a “Notice to Court Re:
Defendant’s Non-Compliance with ARCP Rule 19.” In that notice,
Olive Green asserted Excess Equities, as the current owner of
the house, was an indispensable party to the litigation. Cruz
did not reply, and the superior court merely acknowledged during
the April 7, 2006, hearing that it had received the Rule 19
notice, but the court never again referenced the document.
5
service was incorrect. Both asserted that at the time of the
motion.
6
served someone else, since Bastida weighed over 40 pounds more
Bastida was not home at the time the process server claimed to
the position that the judgment was void, and Cruz’s counsel
court ruled on the motion to set aside the default judgment, and
declarations.5
Bastida, which asserted they were not home at the time the
5
Olive Green first requested an evidentiary hearing in
its motion for reconsideration.
7
60(c)(4).6 That rule allows a court to relieve a party from a
DISCUSSION
I”), 172 Ariz. 191, 194, 836 P.2d 404, 407 (App. 1992). When
6
The court determined Cruz had failed to show grounds
for relief pursuant to Rule 60(c)(1), (3), or (6).
8
will not . . . substitute our judgment for that of the
(“Gen. Elec. II”), 172 Ariz. 185, 188, 836 P.2d 398, 401 (App.
court’s finding. Grant v. Ariz. Pub. Serv. Co., 133 Ariz. 434,
I. Service of Process
¶16 Although Cruz did not explicitly ask for relief under
and Bastida both asserted they had not been served with the
the court did not abuse its discretion by proceeding under Rule
60(c)(4).
v. Petersen Lumber, Inc., 165 Ariz. 257, 262, 789 P.2d 395, 400
(App. 1990); see also Martin v. Martin, 182 Ariz. 11, 15, 893
9
(internal citation omitted). When a judgment is void, the
182 Ariz. at 14, 893 P.2d at 14; see also Barlage v. Valentine,
210 Ariz. 270, 272, ¶ 4, 110 P.3d 371, 373 (App. 2005). “There
173 Ariz. 66, 71, 839 P.2d 1111, 1116 (App. 1992)).
of service.7 Cruz and Bastida asserted they were not home at the
time the process server claimed to have served Bastida, and that
the process server could not have served her because he failed
7
Pursuant to Arizona Rule of Civil Procedure 4.1(d),
process may be served on a person “by leaving copies thereof at
that individual’s dwelling house or usual place of abode with
some person of suitable age and discretion then residing therein
. . . .” Here, it is undisputed that Bastida lived with Cruz in
his dwelling and was a person of both suitable age and
discretion.
10
was “of a clear and convincing nature [sufficient] to overturn
Ariz. App. 527, 529, 410 P.2d 149, 151 (App. 1966); see also
evidence.”).
State v. Canez, 202 Ariz. 133, 156, 42 P.3d 564, 587 (2002)
(quoting State v. Turrentine, 152 Ariz. 61, 68, 730 P.2d 238,
from Bastida and Cruz, averring that Bastida was not at home
when the process server claimed to have served her, and that the
8
See State v. Leonardo, 161 Ariz. 111, 112, 776 P.2d
789, 790 (1989).
11
was the process server’s affidavit of service,9 which described a
Cruz and Bastida. Thus, not only was the evidence “plausible,”
convincing evidence that Bastida was not served with the summons
and complaint, and, therefore, that Cruz was not properly served
9
Olive Green asserts the superior court should have
accorded more weight to the process server’s affidavit of
service because he was an expert and an officer of the court.
We disagree. Even if “private process servers qualify as
experts,” as asserted by Olive Green, the process server did not
participate in this case as an expert witness. Pursuant to
Arizona Rule of Evidence 702, an expert’s testimony is used to
“assist the trier of fact to understand the evidence or to
determine a fact in issue . . . .” Here, the process server’s
affidavit was only relevant to show what he did in serving
Bastida, and in no way assisted the superior court in
understanding any evidence or determining a fact in issue.
Furthermore, Olive Green provided no authority to support its
assertion that an officer of the court’s testimony has more
weight than that of any other person. Our established case law
provides that a process server’s affidavit of service creates a
presumption of service that can be rebutted through clear and
convincing evidence. Huachuca Inv. Co., 2 Ariz. App. at 529,
410 P.2d at 151. Therefore, the superior court did not abuse
its discretion in failing to accord more weight to the process
server’s affidavit of service.
12
default judgment after the court entered it has no bearing on
Barassi v. Matison, 130 Ariz. 418, 421, 636 P.2d 1200, 1203
Inc. v. Estate of Bronner, 146 Ariz. 138, 140, 704 P.2d 268,
Ariz. 319, 599 P.2d 772 (1979)). As such, Cruz’s motion to set
13
limitation.
C. Evidentiary Hearing
Airfreight Exp. Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103,
109, ¶ 17, 158 P.3d 232, 238 (App. 2007)(party waived issue when
319, 320 (1970)). Because the superior court was never provided
182 Ariz. 187, 190, 894 P.2d 730, 733 (App. 1995)(issues raised
14
D. Rule 19 Motion
19. Olive Green argues that because Excess Equities owned the
is without merit.
Bolin v. Superior Court, 85 Ariz. 131, 134-35, 333 P.2d 295, 297
King v. Uhlmann, 103 Ariz. 136, 437 P.2d 928 (1968). Thus, the
joined. See F.D.I.C. v. Adams, 187 Ariz. 585, 589, 931 P.2d
re Chase's Estate, 125 Ariz. 270, 274, 609 P.2d 85, 89 (App.
before the entry of the final judgment were Olive Green and
Cruz. Olive Green does not assert the entry of final judgment
16
respond to Cruz’s motion to set aside the judgment somehow
Liquors, Inc., 177 Ariz. 375, 381, 868 P.2d 958, 964 (App.
10
We express no opinion as to whether Excess Equities
should be considered an indispensable party.
17
520 P.2d 1142, 1144 (1974)).
the case on its docket, Olive Green could have asked the court
dismissal of its appeal before this court placed the case on its
480, 483 (App. 1992). Vacating the ruling on which the appeal
18
CONCLUSION
party, however, the court may consider the fees incurred by the
_________________________
PATRICIA K. NORRIS, Judge
CONCURRING:
_____________________________________
PATRICK IRVINE, Presiding Judge
___________________________________
SHELDON H. WEISBERG, Judge
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