There are things called Rules of Procedure for Eviction Actions. We don’t recall reading through them before, not having handled a forcible entry and detainer since the days when they had to remind us were to park at that courthouse. They seem to have been novelties as well to everyone involved in this FED.

Plaintiff won in the trial court. The court’s order allowing the eviction also allowed fees and costs in amounts to be determined. But it was in the form of a “judgment” and contained Rule 54(c) language (“no further matters remain pending.”). Plaintiff filed for attorney’s fees. Defendant filed an appeal and then filed an objection to the fee request. The court granted fees but deferred a cost award “until the time a final judgment is entered.” That unsigned minute entry was the last thing done in the trial court.

Apparently (we’re reading between the lines), the court and parties thought that the decision on possession had a life of its own, independent of the rest of the action. The Court of Appeals first needs to figure out if that’s true; otherwise the appeal is premature.

FED actions are purely statutory. The statute (A.R.S. 12-1178) provides that the court “shall” give judgment for restitution, damages, fees, and costs. “Thus . . . the statute contemplates that a judgment in an FED action shall include an award of attorney fees.”

Technically that should conclude the analysis but the court goes on to consider the Rules of Procedure for Eviction Actions. Rule 13 says that the court “shall” award fees when applicable.

(The court also points out that Rule 54(c) doesn’t apply to the case, being superseded by the eviction rules.)

So the final judgment in an FED action includes restitution, damages, costs, and fees. Since there never was such a judgment here, even after the appeal, the appeal is premature and can’t be saved. Dismissed pending the entry of a proper final judgment.

But the court is troubled by the result and so includes a few paragraphs of hand-wringing dicta: what about the evicted tenant who can’t yet appeal the eviction? “[A] public policy argument exists for a rule triggering appellate jurisdiction when a trial court issues any judgment for possession and a writ of restitution.” “[O]ur trial judges should consider issuing immediately enforceable judgments of possession only in conjunction with final orders.” The opinion doesn’t appear to understand clearly the difference between the FED judgment and the writ of restitution. Under Rule 13 the latter can’t issue until five days after the former has been signed. And the tenant can then post a bond to stay execution. (There are circumstances involving immediate possession but they are statutory and the rules deal with them appropriately.)

But, but . . . other than that “[a]ll other procedural means of securing . . . a stay would require defendants to challenge the merits . . . before the very court that has recently ruled adversely to them.” In other words, the rules provide various additional ways of avoiding a writ by going back to the trial court. And if that is a problem then we should also revisit such other unjust practices as rehearing, reconsideration, or, for that matter, remand.

(Opinion: AU Enterprises v. Edwards)