From an Arizona Court:
A person is guilty of forcible entry and detainer,
or of forcible detainer, as the case may be, if he:
. . . .
3. Wilfully and without force holds over any lands,
tenements or other real property after termination of the
time for which such lands, tenements or other real
property were let to him or to the person under whom he
claims, after demand made in writing for the possession
thereof by the person entitled to such possession.
(Emphasis added.) Thus, FED was necessary and appropriate for the
limited purpose of allowing the owner to obtain immediate
possession of the premises.
Because there was FED jurisdiction, RREEF argues that it could
seek judgment for unpaid rent, since the FED statutes so provide.
This ignores the statutory language. Under A.R.S. section 12-1178,
the judgment in an FED action may provide, at the plaintiff's
option, "for all rent found to be due and unpaid . . . as provided
for in the rental agreement . . . ." This provision clearly
assumes a rental agreement between plaintiff and defendant. In
this case, that assumption is disputed by Defendant, and a material
fact issue is thereby raised. The question is whether the summary
FED proceedings may be used to determine the existence of a rental
agreement between the parties. Under the rationale of Colonial,
the answer is "no": That dispute must be tried in an ordinary
civil case.
Contrary to RREEF's contention, this holding does not mean
that every defendant can avoid the summary FED proceedings simply
by denying the existence of a lease: There must be a genuine
dispute. In Colonial, Ben Franklin indisputably had been relieved
of its original obligation under the lease by reason of the
assignment. A genuine fact issue existed as to whether Ben
Franklin had reassumed the lease. Here, it is undisputed that
Camex was not in existence at the time Tim Cameron signed the
lease. RREEF has conceded for purposes of appeal that Camex was
not originally obligated under the lease. A genuine fact issue
exists as to whether Camex has assumed the lease. Furthermore, as
Camex notes, any defenses Defendant may wish to raise are subject
to the usual sanctions if frivolous or not made in good faith.
See, e.g., Ariz. R. Civ. P. 11; A.R.S. 12-341.01(C), 12-349.
Here there is a genuine issue of fact not suited to the FED
process, but one that must be left to an ordinary civil action, in
which time periods are not accelerated, counter- and crossclaims
are allowed, and there is an opportunity for discovery. See
Colonial, 179 Ariz. at 433, 880 P.2d at 653 (citing 2 Richard R.
Powell, Powell On Real Property 246[3] (1993)).
II. Attorney's Fees
In its cross-appeal, RREEF asserts the trial court erred in
denying its request for attorney's fees. RREEF argues that fees
are awardable under A.R.S. section 12-1178(A) and the lease.
Section 12-1178(A) provides that if the defendant is found guilty,
"the court shall give judgment for the plaintiff . . . for all
charges stated in the rental agreement . . . ." Article 19.3 of
the lease provides that the tenant shall pay the landlord's
attorney's fees. RREEF argues that "charges" in section 12-
1178(A) encompasses attorney's fees, as envisioned by the lease.
Whether Camex is bound by the lease could not appropriately be
decided in this FED case. Thus, RREEF cannot rely on the contract
for an award of fees. The trial court's authority to award
attorney's fees under a contractual provision is limited by the
special statutory nature of FED actions. DVM Co. v. Stag
Tobacconist, Ltd., 137 Ariz. 466, 468, 671 P.2d 907, 909 (1983).
Attorney's fees are not available in FED actions under A.R.S.
section 12-341.01(A). Id.; Jenkins v. First Baptist Church of
Scottsdale, 166 Ariz. 243, 246, 801 P.2d 478, 481 (App. 1990).
Latching onto language in DVM, RREEF argues that the supreme
court has endorsed the award of attorney's fees in FED actions in
commercial settings. In DVM, the court stated:
We note that the Arizona Legislature has recently
amended A.R.S. 33-1315(A)(2) making a prevailing party
in a forcible entry and detainer action eligible to be
awarded attorney's fees pursuant to A.R.S. 12-341.01
regardless of whether the rental agreement provides for
such an award. Therefore, this decision is only
applicable to those matters brought prior to the
effective date of the statutory amendment.
DVM, 137 Ariz. at 467 n.1, 671 P.2d at 908 n.1. We previously
disposed of an identical argument in Foundation Development. Corp.
v. Loehmann's, Inc., 162 Ariz. 26, 780 P.2d 1074 (App. 1988),
vacated on other grounds, 163 Ariz. 438, 788 P.2d 1189 (1990). The
language quoted from DVM was dictum. Also A.R.S. section 33-1315
does not apply to commercial leases: It is part of the Arizona
Residential Landlord and Tenant Act, which applies only to the
rental of dwelling units. Foundation Dev., 162 Ariz. at 32, 780
P.2d at 1080. The trial court did not err in refusing to award
attorney's fees, and such fees are also not available on appeal.
CONCLUSION
We set aside the monetary award and affirm the judgment as so
modified.
SARAH D. GRANT, Judge
|
