Arizona Real Estate Investment v. Schrader (CA1 11/9/10)

We normally wouldn’t blog an opinion about forcible entry and detainer but this one is so depressing that we couldn’t resist sharing it with you.

At a trustee’s sale Arizona Real Estate bought a house that Schrader refused to leave. It filed an FED action and served Schrader by “post-and-mail,” i.e., posting the process in a “conspicuous place” and sending him copies by certified mail. After it obtained judgment against Schrader he appeal, arguing improper service.

There are two types of FED – an FED action under 12-1171ff and a ”special detainer action” under 33-1377 (used to evict renters). Rule 5(f) of the Rules of Procedure for Eviction Actions allows post-and-mail for the latter but follows Rule 4 for the former. ARE filed a 12-1171, so post-and-mail was improper.

It then argued – as, apparently, did the trial court – that the court was actually using its authority to allow for alternative methods of service. But that requires that Rule-4 service be “impracticable” (in English, “impractical”) and there was no showing that it was even attempted, much less that it couldn’t be done.

For lack of proper service, the judgment against Schrader was void. So, instead of getting possession of the house it owns the plaintiff has to start all over (and also to pay Schrader his costs for the first round).

We’re going to assume that there was a lot happening here that doesn’t meet the eye. Because, meaning no disrespect, let’s face it – FEDs just ain’t that hard. They’re one step up from uncontested default hearings. They’re either what you make your living doing a ton of – including the occasional hard one – or what you give the green associates who’ve already shown that they’re not really cut out for court. How could these people have either filed the wrong sort of case or not noticed that their process server had used the wrong method? Having been put on notice that they’d botched it, how could they litigate for a year through two levels of the judiciary rather than cut their losses and start over? What did they tell the client? And are they going to charge it for doing things right the next time?

But what really depresses us are those Rules of Procedure for Eviction Actions. Remember some time back when a special committee spent much time and effort consolidating various sets of civil rules? Like kudzu, they grow back. Eviction actions aren’t the only examples. The demands of the niche practices, based variously on vanity and ignorance, are unending; the willingness of the Supreme Court to cater to them is disappointing. Coming soon: the Rules of Civil Procedure for Changing Names.

(link to opinion)