Opinion
No. 1 CA-CV 20-0249
03-09-2021
ASHLEY REAL ESTATE LLC, Plaintiff/Appellee, v. RUBIN BLATTMAN, Defendant/Appellant.
COUNSEL Casler Law Office PLLC, Avondale By Carlton C. Casler Counsel for Plaintiff/Appellee Jaburg & Wilk PC, Phoenix By Kathi M. Sandweiss, Roger L. Cohen Counsel for Defendant/Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CV2019-012209
The Honorable Lindsay P. Abramson, Judge Pro Tempore VACATED AND REMANDED COUNSEL Casler Law Office PLLC, Avondale
By Carlton C. Casler
Counsel for Plaintiff/Appellee Jaburg & Wilk PC, Phoenix
By Kathi M. Sandweiss, Roger L. Cohen
Counsel for Defendant/Appellant
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge D. Steven Williams and Judge Jennifer B. Campbell joined. MORSE, Judge:
¶1 Rubin J. Blattman appeals from a judgment finding him guilty of forcible detainer of a commercial rental property. For the reasons that follow, we vacate the judgment against him and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
¶2 In August 2017, JSH, LLC, doing business as Arizona Oak, entered into a five-year commercial lease in a Mesa shopping center with Ashley Real Estate, Inc. ("Landlord"). Blattman and his wife are JSH's sole members and Blattman is its statutory agent. Blattman signed the lease in his role as a member of JSH.
¶3 The base monthly rent was $10,878.87. Within six months, JSH was in arrears and eventually stopped making payments altogether. JSH remained in possession of the premises. On August 16, 2019, Landlord served a 10-day notice of default on "JSH LLC, Attention: Rubin Blattman." After no response, Landlord filed a complaint against "defendants [JSH] and all occupants for possession" and sought a money judgment. Landlord asserted that, as owner, it was entitled to sole and exclusive possession. The original complaint named JSH and other fictitious parties but did not specifically name Blattman.
¶4 Possession of the property was surrendered to Landlord on September 19, 2019. Landlord filed a first amended complaint and then, shortly thereafter, a second amended complaint. Both amended complaints named Blattman and corrected other minor errors in the prior filings. When Landlord filed the second amended complaint, no defendant had filed an answer.
¶5 The superior court held an initial hearing. Blattman appeared, representing himself, and entered a plea of not-guilty of forcible detainer. At that time, the court ordered Blattman to answer the second amended complaint. The next day, Blattman filed a document titled "Motion to Remove Defendants." The entirety of Blattman's motion stated:
Rubin Blattman, Jane Doe Blattman, and Does 1-10 are not signatories to the lease. There is no personal guaranty. A copy of the lease included in the complaint shows the only signatory on the lease is by Rubin Blattman, Member, JSH. As such, I request that Rubin Blattman personally, Jane Doe Blattman and Does 1-10 be removed as defendants.
¶6 Landlord responded to Blattman's motion and moved for judgment on the pleadings. The court denied Blattman's motion and granted Landlord's motion for judgment on the pleadings, finding that Blattman had "failed to file an Answer as previously ordered by the Court."
¶7 Blattman then hired counsel, who moved for relief under Arizona Rule of Civil Procedure ("Rule") 60 and objected to Landlord's form of judgment. Later, counsel orally argued the court lacked subject matter jurisdiction. The court denied Blattman's motions.
As the court noted in its ruling, Rule 60 does not apply in eviction actions. See Ariz. R.P. Eviction Act. 1 (allowing the Arizona Rules of Civil Procedure to apply in forcible detainer actions "only when incorporated by reference"). Blattman should have brought his motion under Arizona Rule of Procedure for Eviction Actions 15. While noted for clarity, we do not find Blattman's mistaken invocation of Rule 60 impacts the merits of his appeal.
¶8 Ultimately, the court entered a judgment against JSH in the amount of $132,839.52 and against Blattman in the amount of $94,378.85. The court also awarded Landlord its attorney fees and court costs, which it split evenly between JSH and Blattman. Blattman timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1) and -1182.
DISCUSSION
¶9 Eviction actions, including forcible entry and detainer ("FED") actions, are "purely statutory" and are "controlled by statute both as to procedure and damages." DVM Co. v. Stag Tobacconist, Ltd., 137 Ariz. 466, 468 (1983) (citation omitted). While we defer to the superior court's factual findings, we apply a de novo review to interpretations of statutes and procedural rules. See Iverson v. Nava, 248 Ariz. 443, 448, ¶ 10 (App. 2020). We review jurisdiction de novo. State ex rel. Dep't of Econ. Sec. v. Tazioli, 226 Ariz. 293, 294, ¶ 7 (App. 2011).
¶10 Blattman raises three issues on appeal. He argues: 1) the superior court lacked subject matter jurisdiction over Landlord's claim against him; 2) his "motion to remove defendants" should have been construed as an answer; and 3) he was not a "person in possession of land" and therefore could not be liable under A.R.S. §§ 12-1271 and 33-323. We address each argument in turn.
I. Subject Matter Jurisdiction.
¶11 Blattman claims the superior court lacked subject matter jurisdiction to add him as a defendant because he surrendered possession of the property prior to the filing of the first amended complaint, the first pleading which included him as a defendant. We disagree.
¶12 The superior court has original jurisdiction over FED actions. Ariz. Const. art. 6, § 14(5); see also A.R.S. §§ 12-123(A), 22-201(C). Jurisdiction is determined at the time the landlord files the complaint. See A.R.S. § 12-1178(A); Keenan v. Biles, 199 Ariz. 266, 268, ¶ 8 n.2 (App. 2001) ("[O]nce an action has been filed, the tenant does not escape liability . . . simply by returning possession of the property."). Blattman argues Keenan is inapplicable, noting that it dealt with a special detainer action involving a residential lease, not a forcible detainer action involving a commercial lease. We fail to see why these distinctions are material.
¶13 Blattman, in his capacity as JSH's agent, was served the initial complaint. That complaint listed "JSH, LLC, and DOES 1-10 and all Occupants" as defendants. This gave Blattman actual notice of the forcible detainer action. It would be problematic if the court were divested of subject matter jurisdiction merely because Blattman, a potential occupant who was served the complaint, surrendered the property before Landlord expressly added him as a defendant. See Keenen, 199 Ariz. at 268, ¶ 9 (noting that landlords would lose statutory protections if "[a] tenant could hold out until a special detainer action was filed, then turn possession over to the landlord and walk away unscathed"). We find that Keenen's holding applies with equal force here and that the superior court had subject matter jurisdiction over Landlord's claims against Blattman.
II. Blattman's Failure to Answer.
¶14 Separately, Blattman argues his "motion to remove defendants" should have been construed as an answer. Landlord responds by asserting this argument has been waived because Blattman never asked the superior court to take his inartful motion as an answer. We hold that Blattman has not waived this issue, his motion was an answer, and therefore the superior court erred in granting Landlord's motion for judgment on the pleadings.
¶15 Arizona Rule of Procedure for Eviction Actions ("RPEA") 7 requires either a written or oral answer by the time of trial. See RPEA 7, 11(b)(1). If a defendant "appears and contests any of the factual or legal allegations in the complaint or desires to offer an explanation, the judge should determine whether there is a basis for a legal defense to the complaint either by reviewing a written answer filed pursuant to [RPEA] 7 or by questioning the defendant in open court." RPEA 11(b)(1).
¶16 The operative complaint alleged that all defendants "entered into a written [lease]" with Landlord and that they owed $136,271.98 in back rent and other fees. Blattman appeared, entered a not-guilty plea, and filed a document that expressly disputed the complaint's allegations. See supra ¶ 5. Accordingly, the superior court was obligated to determine whether Blattman had any basis for a legal defense to Landlord's claim against him. See RPEA 11(b)(1). Contrary to Landlord's argument, Blattman did not need to expressly title his response as an "answer" in order for the superior court to recognize it as such. Such a rule would value form over substance. See Carillo v. State, 169 Ariz. 126, 130 (App. 1991) (rejecting procedural conclusion that would "result in a harsh elevation of form over substance"); cf. also State v. Hopson, 112 Ariz. 497, 498-99 (1975) ("We will not exalt form over substance in the use of the rules of criminal procedure."). Substantively, Blattman disputed that he had any agreement with Landlord and that he owed Landlord under any agreement for rent. That was sufficient to answer those allegations in Landlord's complaint, and Blattman did not waive this issue.
¶17 In a footnote, Landlord suggests the superior court would have granted its motion for judgment on the pleadings even if Blattman's motion was construed as an answer. We disagree. A plaintiff's motion for judgment on the pleadings should be granted only when, taking all material statements in the defendant's answer as true, the allegations within the complaint "clearly entitle[]" plaintiff to judgment. Food for Health Co. v. 3839 Joint Venture, 129 Ariz. 103, 106 (App. 1981). The complaint alleges that Blattman signed a commercial lease with Landlord, occupied the property, and failed to pay "fair market value rent." Blattman's answer refutes the allegation that he signed a lease with Landlord in his personal capacity. In this context, it is not clear that Landlord is entitled to judgment against Blattman in his personal capacity. Given this lack of clarity, we cannot say Landlord would have been clearly entitled to judgment had Blattman's answer been considered by the superior court.
¶18 Landlord attempts to avoid this conclusion by noting the complaint alleged Landlord was owed rent "from Defendants . . . pursuant to A.R.S. § 12-1271 and/or § 33-323." Those statutes provide causes of action to recover rents against the occupants to property, even if the occupant has no lease with the plaintiff. But the cited sentence provides only a legal conclusion, not a factual allegation, and therefore the truth of the statement is not assumed for purposes of a motion for judgment on the pleadings. See Mobile Comm. Council for Progress, Inc. v. Brock, 211 Ariz. 196, 198, ¶ 5 (App. 2005) (explaining that in reviewing a judgment on the pleadings we assume the factual allegations are true but review legal conclusions de novo). And even if the superior court were to consider these statutes, neither provision necessarily suggests that the claim brought against Blattman is for damages unrelated to the commercial lease. See A.R.S. § 12-1271(1) ("A person entitled thereto may bring an action for and recover rent, or a fair and reasonable satisfaction for the use and occupation of real property in the following cases: . . . When rent is due in arrears on a lease."); A.R.S. § 33-323 (providing that "every person in possession of land out of which rent is due is liable" for rents attributable to them, notwithstanding "other legal remedies for recovery of rent"). We reject Landlord's argument that the answer could not have defeated the motion for judgment on the pleadings.
While RPEA 13(c)(2) and A.R.S. § 12-1178 provide for damages based on rent, we do not decide whether other statutory damage claims may be brought in a FED action. Cf. Curtis v. Morris, 184 Ariz. 393, 398 (App. 1995) ("Because an FED action does not bar subsequent proceedings between the parties to determine issues other than the immediate right to possession, those issues are better resolved in proceedings designed to allow full exploration of the issues involved."). --------
¶19 In its minute entry order, the superior court indicated that the sole basis for granting Landlord's motion for judgment on the pleadings was Blattman's supposed failure to file an answer. This was error. Accordingly, we vacate the judgment against Blattman and remand for further proceedings. Given this, we have no need to address Blattman's final argument.
III. Attorney Fees and Costs.
¶20 Both Blattman and Landlord request attorney fees on appeal under A.R.S. §§ 12-341.01 and 12-1178(A). Neither party has "provide[d] support or argument for [their] contention that A.R.S. § 12-1178, which applies to trial court proceedings, allows this court to award fees on appeal." Bank of New York Mellon v. Dodev, 246 Ariz. 1, 12, ¶ 40 (App. 2018). But, in their requests for fees under A.R.S. § 12-341.01, both parties agree this action arises out of an alleged contract. Therefore, as the prevailing party on appeal, we award Blattman his appellate attorney fees.
¶21 Additionally, both parties request their costs. As the prevailing party, we award Blattman his costs on appeal.
CONCLUSION
¶22 For the above-stated reasons, we vacate the superior court's judgment against Blattman and remand for further proceedings. We also award Blattman's attorney fees and costs on appeal upon his compliance with ARCAP 21.