Opinion
2 CA-CV 2023-0223
08-15-2024
Kimson G. Baker, Plaintiff/Appellee, v. Gregory M. Levitt, Defendant/Appellant.
Ansinelli Law PLLC, Tucson By Samantha Ansinelli Counsel for Plaintiff/Appellee Gregory M. Levitt, Tucson In propria persona
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. C20231954 The Honorable Wayne E. Yehling, Judge
Ansinelli Law PLLC, Tucson By Samantha Ansinelli Counsel for Plaintiff/Appellee
Gregory M. Levitt, Tucson In propria persona
Judge Kelly authored the decision of the Court, in which Presiding Judge O'Neil and Judge Vásquez concurred.
MEMORANDUM DECISION
KELLY, JUDGE
¶1 In this civil action involving a claim for forcible entry and detainer (an eviction claim), Gregory Levitt appeals from the superior court's order entered in favor of Kimson Baker. We dismiss this appeal for lack of jurisdiction.
Factual and Procedural Background
¶2 In May 2023, Baker filed a complaint asserting forcible entry and detainer (FED) and seeking to evict Levitt from his property. His complaint alleged additional claims for quiet title, wrongful lien, conversion, and declaratory relief against Levitt. Levitt moved to dismiss Baker's complaint for lack of jurisdiction, which the superior court treated as a motion for summary judgment and requested that the parties submit additional briefing solely as to the FED claim.
¶3 Following that briefing, the superior court found Levitt guilty of forcible detainer and entered a judgment in favor of Baker only as to the FED claim, leaving Baker's other claims for quiet title, wrongful conversion, and declaratory relief pending. The court additionally "defer[ed] orders regarding costs and attorney's fees until resolution of the other issues in [Baker's] First Amended Complaint," and certified the order under Rule 54(b), Ariz. R. Civ. P., as a final judgment with respect to the FED count.
¶4 In August 2023, Levitt filed a motion for relief from the judgment and to stay its execution. He later filed a motion for a "preliminary injunction" and a motion to stay all proceedings pending the superior court's ruling on that motion. The court entered a ruling on August 28, 2023, amending portions of its July order, but finding that Baker had "a right of superior possession due to [Levitt's] permission to reside on the Property being revoked" and terminated. The court again deferred orders as to "damages, costs, and attorney's fees until resolution of the other issues in [Baker's] First Amended Complaint," and again certified the order under Rule 54(b) as a final judgment as to the FED count. Levitt filed a notice of appeal from the August 28 order.
Discussion
¶5 We have an independent obligation to determine whether we have jurisdiction to consider an appeal. Camasura v. Camasura, 238 Ariz. 179, ¶ 5 (App. 2015). Our jurisdiction "is created by the legislature and limited by statute." Id.; see also A.R.S. §§ 12-120.21(A), 12-1182, 12-2101(A).
¶6 Eviction actions "are 'purely statutory' and are 'controlled by statute both as to procedure and damages.'" AU Enters. Inc. v. Edwards, 248 Ariz. 109, ¶ 5 (App. 2020) (quoting DMV Co. v. Stag Tobacconist, Ltd., 137 Ariz. 466, 468 (1983)). If a defendant is found guilty of FED, the superior court "shall give judgment for the plaintiff" for damages, attorney fees, and costs. A.R.S. § 12-1178(A). "Thus, on its face, [this] statute contemplates that a judgment in an FED action shall include an award of attorney fees." Edwards, 248 Ariz. 109, ¶ 5.
¶7 FED actions are governed by the Rules of Procedure for Eviction Actions (RPEA). Id. ¶ 6. Barring limited exceptions, these rules provide that the Arizona Rules of Civil Procedure do not apply to eviction actions unless expressly incorporated. RPEA 1. "Therefore, the determination of finality as contemplated by Rule 54, Ariz. R. Civ. P., does not apply" to eviction actions. Edwards, 248 Ariz. 109, ¶ 6. Instead, Rule 13, RPEA, governs the entry of judgment and "specifically includes attorney fees in its enumeration of issues a trial court must resolve in considering an eviction action." Edwards, 248 Ariz. 109, ¶ 6.
¶8 Applying the finality standard derived from RPEA, we determine that no appealable final judgment exists here. See RPEA 13(f). While both the superior court's July and August rulings contained finality language as to the FED claim, these rulings also expressly ordered that the court was deferring its ruling on attorney fees and costs. Because the August order did not resolve the issue of attorney fees and costs, it did not constitute a final judgment; therefore, we lack jurisdiction to address the merits of this appeal. See RPEA 13(f); see also Baker v. Bradley, 231 Ariz. 475, ¶ 9 (App. 2013) (court of appeals jurisdiction generally limited to "appeals from final judgments which dispose of all claims and parties").
We take no position as to whether Baker's other claims are properly before the superior court given that the relief he seeks in those claims is not available under the RPEA, see RPEA 13(c), and the RPEA disallows consolidation of non-eviction actions, see RPEA 8(c) ("An eviction action . . . shall not be consolidated with any other type of action."). See also Fen Invs., LLC v. Fonzi Food, ___ Ariz. ___, ¶ 35, 551 P.3d 625, 632 (App. 2024) (eviction rules "are narrow in scope and limited to the claims and procedure provided"). Nor do we address the question whether the jurisdictional defect in this case would be resolved if the court fully resolves the FED action without resolving Baker's other claims.
Attorney Fees and Costs
¶9 Baker requests his attorney fees and costs on appeal pursuant to Rule 4(g), Ariz. R. P. Spec. Act. Rule 4(g) governs attorney fees in special action proceedings brought in an appellate court, and given that this matter is not a special action, this rule is inapplicable. Cf. Henderson v. Henderson, 241 Ariz. 580, ¶ 36 (App. 2017) (denying claims for attorney fess made pursuant to inapplicable rules). We therefore deny Baker's request.
Disposition
¶10 We dismiss for lack of jurisdiction.