Walters v. D'Annibale

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JOSEPH WALTERS, Plaintiff/Appellant,

v.

SHAKARI D’ANNIBALE, Defendant/Appellee.

No. 1 CA-CV 21-0520
FILED 6-14-2022

Appeal from the Superior Court in Maricopa County
No. CV2021-004894
The Honorable David W. Garbarino, Judge

AFFIRMED

COUNSEL

Zazueta Law PLLC, Scottsdale
By Fabian Zazueta, Garrett Respondek
Counsel for Plaintiff/Appellant

Shakari D’Annibale, Phoenix
Defendant/Appellee
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Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Plaintiff Joseph Walters (“Landlord”) appeals the superior
court’s judgment finding defendant Shakari D’Annibale (“Tenant”) not
guilty of forcible detainer and awarding her attorneys’ fees and costs.
Because Landlord has shown no error, we affirm.

BACKGROUND

¶2 Landlord owns a house located on Camelback Mountain in
Phoenix. The house is fully furnished with Landlord’s personal property
and from 2015-2018 it was used for short-term rentals. In July 2019, Tenant
signed a lease agreement (“Lease”) to rent the house for 24 months
beginning August 1, 2019 and paid a $16,500 security deposit. Tenant’s
monthly payments were set at $11,000 but the Lease did not include a due
date for rent. The Lease prohibited Tenant from keeping pets on the
premises and specified that she would occupy the house with her two
children. The Lease also contained an anti-waiver provision, which
provided:

No waiver by Landlord of any provision herein shall be
enforceable against Landlord unless in writing signed by
Landlord, nor shall it be deemed a waiver of any other
provision herein or of any subsequent breach by Tenant of the
same or any other provision. Landlord’s consent to or
approval of any act shall not constitute a continuing consent
to or approval of any subsequent act by Tenant.

¶3 On February 23, 2021, Landlord sent Tenant a Notice of Intent
to Terminate Lease for Material Breach of Rental Agreement (“February
Notice”). He alleged that Tenant had unauthorized pets, unauthorized
occupants, and failed to maintain the premises. Tenant had ten days to cure
the violations or the lease would automatically terminate and Landlord
could file an eviction action. See A.R.S. § 33-1368(A).

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¶4 Landlord accepted Tenant’s rent payment for March 2021. On
March 26, 2021, Landlord filed a complaint in superior court seeking to evict
Tenant. Landlord alleged in part that Tenant breached the Lease by having
cats on the premises, allowing unauthorized occupants (four children
instead of two) to live in the house, and failing to maintain the premises.
Landlord then accepted Tenant’s rent payment for April 2021.

¶5 After a bench trial, the court found Tenant not guilty of
forcible detainer. The court held that the Lease’s anti-waiver provision is
invalid because it conflicts with the Arizona Residential Landlord and
Tenant Act (“ARLTA”). See A.R.S. §§ 33-1371(C) (providing a waiver
defense for tenants if a landlord accepts rent with knowledge of a past
breach), -1315(A)(1) (“A rental agreement shall not provide that the tenant
. . . [a]grees to waive or to forego rights or remedies under [ARLTA].”). The
court therefore determined that because Tenant made all rental payments
through April 2021, under § 33-1371(C), Landlord waived his right to
terminate the Lease for any breach occurring before his most recent
acceptance of rent. The court further explained, however, that assuming
§ 33-1371(C) did not apply, the only issues before the court were those
outlined in the February Notice: unauthorized animals, unauthorized
occupants, and failure to maintain the premises.

¶6 Noting the conflicting evidence about whether Tenant failed
to cure the unauthorized pets issue, the court found that Landlord did not
meet his burden to prove that it was more likely than not that Tenant failed
to cure the issue. The court also found that Tenant lived in the house with
her four children, and that “but for [Landlord’s] acceptance of rent, the
occupancy issue would constitute grounds to terminate the Lease.” The
court explained that there was insufficient evidence to support Landlord’s
property damage claim, with the exception of any damage caused by the
unauthorized pets, which could be addressed through Tenant’s security
deposit. Thus, the court concluded that eviction for the alleged property
damages was not the proper remedy.

¶7 Tenant requested more than $34,000 in attorneys’ fees and
costs pursuant to the Lease, which provided that the prevailing party in any
dispute between the parties would be awarded fees and costs. The court
found the amount requested was unreasonable and awarded $17,000
instead. Landlord timely appealed, and we have jurisdiction under A.R.S.
§ 12-2101(A)(1).

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DISCUSSION

¶8 Landlord argues the court erred in finding that the anti-
waiver provision was unenforceable, and that Tenant was not guilty of
forcible detainer. He acknowledges that Tenant has long since vacated the
Property, but argues his appeal is not moot because if he prevails on appeal,
Tenant would no longer be the prevailing party, which would affect the
superior court’s fee award. Tenant agrees that the appeal is not moot for
that same reason. We agree. See Fisher v. Maricopa County Stadium Dist., 185
Ariz. 116, 119 (App. 1995).

¶9 We review questions of law de novo, but “defer to the
superior court’s findings of fact unless clearly erroneous.” Fleming v.
Tanner, 248 Ariz. 63, 68, ¶ 13 (App. 2019); see also Ariz. R. Civ. P. 52(a)(6).

¶10 Landlord argues the superior court erred in finding the anti-
waiver provision was unenforceable under ARLTA. However, that
provision plainly requires that Tenant forego her rights and remedies under
§ 33-1371(C). Thus, the court properly concluded that the provision is
unenforceable under ARLTA. See A.R.S. § 33-1315(B) (“A provision that is
prohibited by” § 33-1315(A) “and that is included in a rental agreement is
unenforceable.”).

¶11 Landlord interprets the superior court’s ruling to mean that if
a landlord accepts rent, thus waiving any breaches, he may not evict a
tenant for a subsequent breach (occurring after the latest rental payment).
We do not read the ruling that way. But even assuming the court’s
preclusion of the anti-waiver provision was overly broad, it does not
change our analysis because each of the three issues contained in the
February Notice were waived by Landlord’s acceptance of rent in March
and April.

¶12 Nonetheless, Landlord argues he did not waive his right to
evict Tenant for the unauthorized occupants and pets. He contends Tenant
continued to maintain unauthorized occupants and pets at the house after
he accepted the April 2021 rental payment. He claims there was a “strong
inference” that Tenant continued to have cats on the premises after the
April 2021 rent payment because the smell of cat urine was still present.
Landlord also points to the superior court’s finding Tenant did not dispute
that she continued to allow her four children to reside at the house, despite
the Lease’s occupancy limit of two children.

¶13 Landlord, however, fails to acknowledge that the only issues
before the superior court were those outlined in the February Notice, and

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whether Tenant cured those breaches. The superior court properly limited
its review to the issues contained in that notice, which alleged that Tenant
had unauthorized pets, unauthorized occupants, and failed to maintain the
premises. When Landlord accepted the April rent payment, Landlord
waived the issues raised in the February Notice. To the extent there were
new breaches of the Lease, nothing in the record shows that Landlord gave
Tenant notice of any alleged breaches occurring after he accepted the April
2021 rental payment, or that Tenant was given an opportunity to cure them.
See § 33-1368(A) (providing that “if there is a material noncompliance by
the tenant with the rental agreement . . . the landlord may deliver a written
notice to the tenant”). Thus, Landlord’s reliance on conduct that occurred
after he accepted the April 2021 rent payment is unavailing.

¶14 We also reject Landlord’s contention that the court erred in
finding that he did not meet his evidentiary burden regarding the pet issue.
The superior court “is in the best position to weigh evidence and assess
witness credibility.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016). As
such, we defer to the court’s findings of fact if supported by reasonable
evidence and inferences. Id.

¶15 The court heard conflicting testimony about whether Tenant
had cats on the property after the February Notice. For example, both
Landlord and his property manager testified that a black and white cat was
seen on the driveway of the house at an inspection in April 2021, and that
they could smell cat urine inside the house during that inspection. Tenant
offered testimony that the black and white cat did not belong to her, nor
was she taking care of it on the premises. She also testified that many of
Landlord’s items were still in the house during the lease, and that cat
products found in the house did not belong to her.

¶16 The superior court noted that while the evidence established
that Tenant had cats on the premises on occasion, “[t]he evidence conflicted
as to whether [Tenant] cured the issue within ten days of the February []
Notice.” Finding no credibility issues with any of the testifying witnesses,
the court determined that Landlord failed to show “that [it] was more likely
than not that [Tenant] did not cure the issue.” Because the court’s findings
of fact regarding the unauthorized pets are supported by conflicting but
reasonable evidence, Landlord has failed to show such findings were
clearly erroneous.

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CONCLUSION

¶17 We affirm the superior court’s ruling and award of attorneys’
fees to Tenant. Both parties seek an award of attorneys’ fees. Because
Landlord has not prevailed, we deny his request. We also deny Tenant’s
request because she is no longer represented by counsel. As the successful
party on appeal, Tenant is entitled to recover her taxable costs subject to
compliance with ARCAP 21.

AMY M. WOOD • Clerk of the Court
FILED: AA

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