Dushoff v. Phoenix Co.

• Decision Date: 26 November 1974
• Docket Number: CA-CIV,No. 1,1
• Parties: , 16 UCC Rep.Serv. 615 Jay DUSHOFF and Diane Dushoff, his wife, Appellants, v. The PHOENIX COMPANY, a limited partnership, Appellee. 2142.
• Court: Arizona Court of Appeals

Page 637

528 P.2d 637

22 Ariz.App. 445, 16 UCC Rep.Serv. 615

Jay DUSHOFF and Diane Dushoff, his wife, Appellants, v. The PHOENIX COMPANY, a limited partnership, Appellee.

No. 1 CA-CIV 2142.

Court of Appeals of Arizona, Division 1, Department A.

Nov. 26, 1974.

Dushoff & Sacks, by Seymour Sacks, and Leroy L. Miller, Phoenix, for appellant

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

OPINION

STEVENS, Judge.

The Phoenix Company (Phoenix) brought an action alleging a breach of a lease against Jay Dushoff (Dushoff). The trial court granted Phoenix's motion for summary judgment. Dushoff claims that the trial court committed error in granting the summary judgment because three affirmative defenses were advanced that were questions of fact and should not have been decided on a motion for summary judgment. Dushoff as an affirmative defense alleged that Phoenix failed to comply with the express provisions of the lease to give notice of default to Dushoff before suit was brought; that Phoenix failed to mitigate its damages as provided in the lease; and that there was an abandonment of the premises by the lessee, Dushoff, coupled with a retaking by the lessor since the Phoenix Company attempted to lease the premises for its own benefit and not for Dushoff's. 'In determining whether summary judgment should have been granted, neither the trial court nor the appellate court weigh evidence, and the matters presented are considered in the most favorable aspect to the party opposing the motion.' Hall v. Motorists Ins. Corp., 109 Ariz. 334, 336, 509 P.2d 604, 605--606 (1973).

The defendant Jay Dushoff, entered into a written lease with The Phoenix Company for the rental of business offices for a term of three years commencing 1 October 1968. The managing agent of the property in question was The David H. Murdock Development Company (Murdock), a company that manages several other commercial buildings in the Phoenix area. The offices rented by Dushoff were occupied by The Cherokee Construction Company, a corporation in which Dushoff was a 50% Owner. The premises were vacated by Cherokee prior to the lease's termination sometime in May 1970. The complaint was filed on 25 January 1971 alleging a breach of contract. Dushoff filed his answer presenting the above-stated affirmative defenses. Subsequently the defendant made a motion for summary judgment for the reason that the plaintiff failed to give the notice of default as required by the lease. The plaintiff responded by alleging that any required notice was in fact given, and if not, then the actions of the defendant made such notice unnecessary and in turn moved for a summary judgment in its favor. After a hearing the trial court granted plaintiff's motion for summary judgment.

'* * * In order for the entry of summary judgment to be appropriate there must be no genuine dispute as to any material fact and only one inference can be drawn from the undisputed material facts, and based on the undisputed material facts the moving party is entitled to judgment as a matter of law, * * * Summary judgment is not appropriate if different inferences can reasonably be drawn from undisputed facts. (Citations omitted)' Lundy v. Prescott Valley, Inc., 110 Ariz. 362, 364, 519 P.2d 61, 63 (1974).

We believe that the instant case is one where, while the material facts are not in dispute, the inferences to be drawn from these facts are in sharp dispute and therefore the termination of the dispute by granting of a summary judgment is erroneous. The defendant's own motion for a summary judgment was based on the alleged absence of the notice of default as required by the terms of the lease. Phoenix argues that any defect in the notice of default was waived by Dushoff because he failed to plead the lack of a condition precedent specifically in his answer as required by Rule 9(c), Ariz. Rules of Civ.Proc., 16 Ariz.Rev.Stat.Ann. We believe this argument cannot stand since paragraph 3 of Dushoff's affirmative defenses states: 'Plaintiff failed to comply with the express and implied promise of notice to the defendant Jay Dushoff * * *.' In the alternative, Phoenix urges that any required notice of default was in fact given by letters to Dushoff stating that he is in arrears in the payment of rent and requesting that he bring his account current. Phoenix also contends that Dushoff's letter of 19 October 1970, disclaiming any responsibility from paying the rent made the notice of default futile. Dushoff in turn alleges that the correspondence from Murdock was a simple request for Dushoff to pay the rent and that a notice of default should include notice that the plaintiff considers the contract to be breached and that he will resort to available legal remedies for a solution. Dushoff further claims that the letter disclaiming responsibility from paying the rent did not make the notice of default unnecessary. We believe that the question of whether an adequate notice of default was given is a question of fact and consequently summary judgment should not have been granted.

Dushoff alleges as an affirmative defense that there was an abandonment of the premises and the subsequent retaking by Phoenix because Phoenix attempted to sublease or rerent the premises for its own benefit since the rental it quoted to any prospective tenant was the current rates rather than the rate provided for in the lease. Furthermore, Dushoff claims that Phoenix made no substantial effort to rerent the premises since the vacant premises were shown to prospective tenants only as a last resort after they were shown other available space managed by Murdock. This question was addressed in Riggs v. Murdock, 10 Ariz.App. 248, 458 P.2d 115 (1969), where the court stated:

'We believe the best rule, and the one based upon the soundest reasoning, is that the question of the tenant's abandonment and the intent of the landlord in accepting that abandonment are questions of fact depending upon all the surrounding circumstances. (Citations omitted)

'Under this principle the trier of facts must look at all the evidence in light of the surrounding circumstances and determine whether the dominion and control exercised by the landlord was for the landlord's own benefit or for the benefit of and on behalf of the original tenant.' 10 Ariz.App. at 251, 458 P.2d at 118.

Since the questions of abandonment and the landlord's acceptance are questions of fact, summary judgment should not have been granted.

Dushoff's last contention is that the Phoenix Company was not entitled to summary judgment because it had a duty but failed to mitigate Dushoff's damages following the vacation of the premises by attempting to relet them, for the benefit of Dushoff, to some...