AU Enterprises v. Edwards (CA2 1/21/20)

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(The court also points out that Rule 54(c) doesn’t apply to the case, being superseded by the eviction rules.)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

Tucson Estates v. Estate of Jenkins (CA2 11/12/19)

The defendant didn’t care about this case; it made no appearance at any stage of it. The plaintiff cared mostly about attorney’s fees — but not those in this case, as only a couple of thousand dollars were at issue. The point, as the court suggests between the lines, was to set an easy-fee precedent for its future cases.

Plaintiff, a homeowners’ association, sued Defendant alleging violations of the CC&Rs. Plaintiff took default judgment and submitted a China Doll affidavit for its fees. The trial court awarded fees but reduced them, finding some of the requested fees excessive. Plaintiff appealed. A non-appearance on appeal is normally a confession of error but Plaintiff wanted a precedent set instead, so that’s what the court did: it reviewed the issue and published but set a precedent opposite to what Plaintiff wanted.

Plaintiff argued that the trial court’s ability to reduce the amount evidenced by a China Doll affidavit is limited when there is no opposition to it. Although that sounds dangerous considering the routine effronteries of China Doll affidavits there is decent support for it in some of the language of the precedent, including China Doll itself. The court has to step around that; not all of its steps are equally deft.

China Doll “authorizes a trial court to adjust a fee award ‘upon the presentation of an opposing affidavit.'” But it didn’t involve a situation where no one was available to file one.

McDowell (App. 2007) said that a China Doll affidavit establishes a “prima facie entitlement to fees in the amount requested.” McDowell was an HOA case involving contractual fees. This opinion distinguishes McDowell on the grounds that the CC&Rs in that case gave the HOA a claim to “all” fees whereas Tucson Estates’ give it a claim to “reasonable” fees.

Which leads the court to a conclusion: in order to ensure that the fee awarded is reasonable the trial court has broad discretion to review the fee request despite lack of an opposition. Otherwise, the intent of the parties to the contract could be frustrated.

This is good policy, the court tells us, because limiting the trial court “would incentivize some prevailing parties to overreach in their fee applications.” No, really?

(The irony is that this plaintiff didn’t, at least not much. Some of the items criticized by the trial court seem a bit overstated but others certainly don’t.)

But wait a minute. Is the court really suggesting that its rule doesn’t apply if the fee agreement says “all”? Can a default judgment include an unreasonable fee if the contract is worded correctly? What about the rule that that’s unethical? Isn’t it also against public policy? And if it is indeed against public policy, what is the legal difference between a contract that says “all” and a contract that says “reasonable”?

(Opinion: Tucson Estates Property Owners Association vs. Estate of Jenkins)

Apache Produce v. Malena Produce (CA1 8/12/19)

This nice opinion, a case of first impression that has the taste not to boast of it, concerns an interesting issue regarding injunctive relief.

Plaintiff and Defendant are rival Nogales produce importers. Plaintiff was in litigation in Mexico with a certain Mexican grower about whether it had a contract to distribute the grower’s produce; Plaintiff said it did, the grower said it didn’t. When the grower hired Defendant Plaintiff brought this case for intereference with contract and unjust enrichment, seeking damages and injunctive relief. It applied for a TRO and a hearing on a preliminary injunction. Defendant then moved to stay the case, apparently until the Mexican litigation was resolved. The trial court granted the stay without ruling on the injunctive issues. Plaintiff filed a special action, which the Court of Appeals declined. So Plaintiff filed an appeal.

12-2101(A)(5)(b) permits appeal from an order “refusing to grant . . . an injunction.” Plaintiff argued that by not ruling on the injunction the trial court refused it. Defendant argued that the court didn’t refuse it but instead merely deferred it until after the stay. There is no Arizona authority on point. Because preliminary injunctions are to provide speedy relief from irreparable injury, the court concludes that by indefinitely postponing it the trial court had effectively denied it. Cases from other jurisdictions are to the same effect.

On the merits the court holds that granting a stay to avoid ruling on a preliminary injunction is an abuse of discretion. The factors considered in ruling on the two are different. Using one to dispose of the other employs the wrong legal standard.

A good opinion but one that should never have existed. We have no idea whether Plaintiff deserves a preliminary injunction. But how can a trial court believe that a party’s request for relief could be dealt with by not ruling on it? There is a reason why there was no Arizona authority, and why these cases are few and far between elsewhere. And it isn’t because defendants don’t ever try to stay a case to avoid an injunction.

(Opinion: Apache Importers v. Malena Produce)