Dushoff v. Phoenix Co., No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtSTEVENS; OGG, P.J., and J. DONOFRIO
Citation23 Ariz.App. 238,532 P.2d 180
PartiesJay DUSHOFF and Diane Dushoff, his wife, Appellants, v. The PHOENIX COMPANY, a limited partnership, Appellee, First National Bank of Arizona, Amicus Curiae, David H. Murdock dba David H. Murdock Development Company, Amicus Curiae. 2142.
Decision Date13 February 1975
Docket NumberCA-CIV,No. 1

Page 180

532 P.2d 180
23 Ariz.App. 238
Jay DUSHOFF and Diane Dushoff, his wife, Appellants,
v.
The PHOENIX COMPANY, a limited partnership, Appellee,
First National Bank of Arizona, Amicus Curiae,
David H. Murdock dba David H. Murdock Development Company, Amicus Curiae.
No. 1 CA-CIV 2142.
Court of Appeals of Arizona, Division 1, Department A.
Feb. 13, 1975.
Review Denied March 18, 1975.

[23 Ariz.App. 239]

Page 181

Dushoff & Sacks, by Seymour Sacks, Leroy L. Miller and Robert V. Kerrick, Phoenix, for appellants.

Bonn & Anderson, by Jeffrey D. Bonn, Phoenix, for appellee.

Streich, Lang, Weeks, Cardon & French, by Dan M. Durrant, Phoenix, for the First Nat. Bank of Arizona.

Gust, Rosenfeld, Divelbess & Henderson, by Richard A. Segal, Phoenix, for David H. Murdock dba David H. Murdock Development Co.

STEVENS, Judge.

This Court rendered its opinion on 26 November 1974. The opinion is reported in 22 Ariz.App. 445, 528 P.2d 637.

The appellee filed a timely motion for rehearing. The First National Bank of Arizona filed its motion in support of the motion for rehearing and for leave to file an amicus curiae brief which was tendered with the motion. David H. Murdock dba David H. Murdock Development Company filed a like motion and tendered a brief. The appellants filed their response.

It is ordered granting the motion for leave to appear as amicus curiae and the briefs are accepted. In this connection the Court desires to point out that the First National Bank of Arizona's motion and brief do not limit themselves to the record before this Court and urge a number of matters which are outside of the record. This may not be done. City of Tempe v. Prudential Insurance Company of America, 109 Ariz. 429, 510 P.2d 745 (1973).

The amicus curiae have miscontrued the opinion. They urge that the opinion places on the landlord 'an absolute duty * * * to mitigate damages.' Our holding (22 Ariz.App. at 449, 528 P.2d at 641) only requires that the landlord 'make reasonable efforts to rent it (the property) at a fair rental.' This requirement leaves intact the tenant's contractual obligations under the lease, subject to the effect of the landlord's failure to make reasonable efforts, if such be the fact.

The opinion, as pointed out in the appellants' response, reverses the summary judgment for reasons other than the factual question as to whether the landlord did use reasonable efforts to mitigate.

It is further ordered reaffirming our opinion and denying...

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10 practice notes
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...the trend [378 A.2d 771] among recent cases appears to be in favor of a mitigation requirement. Compare Dushoff v. Phoenix Co., 23 Ariz.App. 238, 532 P.2d 180 (App.1975); Hirsch v. Merchants National Bank & Trust Co., 336 N.E.2d 833 (Ind.App.1975); Wilson v. Ruhl, 277 Md. 607, 356 A.2d 544 ......
  • Forty Exchange Co. v. Cohen
    • United States
    • New York City Court
    • July 18, 1984
    ...estate firm based in New York City. 3 Condor Corp. v. Arlen Realty and Dev. Corp., 529 F.2d 87 (8th Cir.1976); Dushoff v. Phoenix Co., 23 Ariz.App. 238, 532 P.2d 180 (1975); State v. Boyle, 168 Ind.App. 643, 344 N.E.2d 302 (1976); Vawter v. McKissick, 159 N.W.2d 538 (Iowa 1968); Friedman v.......
  • New Pueblo Constructors, Inc. v. State, No. 2
    • United States
    • Court of Appeals of Arizona
    • March 7, 1984
    ...lends further support to this proposition. Relying on Dushoff v. Phoenix Company, 22 Ariz.App. 445, 528 P.2d 637 (1974), rehearing den., 23 Ariz.App. 238, 532 P.2d 180 (1975), NPC contends that there was a jury issue as to the sufficiency of the notice required by subsection 105.17 and, in ......
  • Tempe Corporate Office Bldg. v. Arizona Funding Services, Inc., No. 1
    • United States
    • Court of Appeals of Arizona
    • March 12, 1991
    ...efforts to rent the abandoned premises at a fair rent. Dushoff v. Phoenix Co., 22 Ariz.App. 445, 449, 528 P.2d 637, 641 (1974), aff'd, 23 Ariz.App. 238, 532 P.2d 180 (1975). If the landlord makes reasonable but unsuccessful efforts to relet the premises, he is entitled to the full amount of......
  • Request a trial to view additional results
10 cases
  • Sommer v. Kridel
    • United States
    • United States State Supreme Court (New Jersey)
    • June 29, 1977
    ...the trend [378 A.2d 771] among recent cases appears to be in favor of a mitigation requirement. Compare Dushoff v. Phoenix Co., 23 Ariz.App. 238, 532 P.2d 180 (App.1975); Hirsch v. Merchants National Bank & Trust Co., 336 N.E.2d 833 (Ind.App.1975); Wilson v. Ruhl, 277 Md. 607, 356 A.2d 544 ......
  • Forty Exchange Co. v. Cohen
    • United States
    • New York City Court
    • July 18, 1984
    ...estate firm based in New York City. 3 Condor Corp. v. Arlen Realty and Dev. Corp., 529 F.2d 87 (8th Cir.1976); Dushoff v. Phoenix Co., 23 Ariz.App. 238, 532 P.2d 180 (1975); State v. Boyle, 168 Ind.App. 643, 344 N.E.2d 302 (1976); Vawter v. McKissick, 159 N.W.2d 538 (Iowa 1968); Friedman v.......
  • New Pueblo Constructors, Inc. v. State, No. 2
    • United States
    • Court of Appeals of Arizona
    • March 7, 1984
    ...lends further support to this proposition. Relying on Dushoff v. Phoenix Company, 22 Ariz.App. 445, 528 P.2d 637 (1974), rehearing den., 23 Ariz.App. 238, 532 P.2d 180 (1975), NPC contends that there was a jury issue as to the sufficiency of the notice required by subsection 105.17 and, in ......
  • Tempe Corporate Office Bldg. v. Arizona Funding Services, Inc., No. 1
    • United States
    • Court of Appeals of Arizona
    • March 12, 1991
    ...efforts to rent the abandoned premises at a fair rent. Dushoff v. Phoenix Co., 22 Ariz.App. 445, 449, 528 P.2d 637, 641 (1974), aff'd, 23 Ariz.App. 238, 532 P.2d 180 (1975). If the landlord makes reasonable but unsuccessful efforts to relet the premises, he is entitled to the full amount of......
  • Request a trial to view additional results

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