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Barlage v. Valentine4/27/2005
REVERSED AND REMANDED
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
Appellant Dale Barlage filed this action against Valentine Cosmetics, L.L.C. and Leigh Valentine in June 2003. 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 " voiding service of process."
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. The 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
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) (" 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.
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, " 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
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 why he had used publication, Barlage stated that Valentine had been " 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.
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 had
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