DVM Co. v. Stag Tobacconist, Ltd., 16604-PR

• Decision Date: 05 October 1983
• Docket Number: No. 16604-PR,16604-PR
• Citation: 137 Ariz. 466,671 P.2d 907
• Parties: DVM CO., a joint venture, Plaintiff-Appellant/Cross-Appellee, v. STAG TOBACCONIST, LTD., an Arizona corporation, Defendant-Appellee/Cross-Appellant.
• Court: Arizona Supreme Court

Page 907

671 P.2d 907

137 Ariz. 466

DVM CO., a joint venture, Plaintiff-Appellant/Cross-Appellee, v. STAG TOBACCONIST, LTD., an Arizona corporation, Defendant-Appellee/Cross-Appellant.

No. 16604-PR.

Supreme Court of Arizona In Banc.

Oct. 5, 1983.

Reconsideration Denied Nov. 8, 1983.

Murphy & Posner by K. Bellamy Brown, Phoenix, for plaintiff-appellant cross-appellee.

Daughton, Feinstein & Wilson by Allen L. Feinstein, Jeffrey S. Leonard, Phoenix, for defendant-appellee cross-appellant.

GORDON, Vice Chief Justice:

In October, 1976 Stag Tobacconist, Ltd. (Stag) and DVM, Co. (DVM) entered into a commercial lease agreement pursuant to which Stag rented retail office space from DVM. The parties' lease provided that if either party instituted "any action or proceeding against the other relating to the provisions of this Lease * * * the prevailing party in such action or proceeding shall be entitled to recover from the other party its reasonable costs, expenses and attorney's fees."

DVM eventually commenced a forcible entry and detainer action against Stag for a non-payment of rent. The trial court granted summary judgment in favor of Stag which the Court of Appeals affirmed on appeal.

After the Court of Appeals filed its decision Stag submitted a statement of costs and application for attorney's fees pursuant to the terms of the lease, A.R.S. § 12-341.01, and Ariz.R.Civ.App.P. 21(c). DVM objected to the request for attorney's fees. The Court of Appeals sustained the objection regarding attorney's fees but awarded Stag $80 in costs. It is from the denial of attorney's fees that Stag now appeals. We have jurisdiction of this matter pursuant to Ariz. Const. art. 6, § 5(3) and Ariz.R.Civ.P. 23. We approve the ruling of the Court of Appeals.

We accepted review of this matter to decide the following question: May attorney's fees be awarded to the prevailing party as part of the court's judgment in a forcible entry and detainer action? ¹ Stag initially directs the Court's attention to two cases in which the Court of Appeals impliedly held that attorney's fees were recoverable. In both Thompson v. Harris, 9 Ariz.App. 341, 452 P.2d 122 (1969) and Concannon v. Yewell, 16 Ariz.App. 320, 493 P.2d 122 (1972) the trial court's award of attorney's fees was reversed on the ground that there was insufficient evidence to establish that the amount of fees awarded were "reasonable." Stag argues that by considering the reasonableness of the attorney's fees the Court of Appeals must have initially concluded that attorney's fees were in fact allowable. Neither of the cases directly address the substantive question of whether attorney's fees are allowable under the statutory scheme dealing with forcible entry and detainer actions. Therefore, we do not believe that they are dispositive of the issue being addressed in this case.

Forcible entry and detainer is a statutory proceeding, the object of which is to provide a summary, speedy and adequate means for obtaining possession of premises by one entitled to actual possession. Heywood v. Ziol, 91 Ariz. 309, 372 P.2d 200 (1962); Casa Grande Trust Company v. Superior Court, 8 Ariz.App. 163, 444 P.2d 521 (1968). The only issue to be determined is the right to actual possession. Phoenix-Sunflower Industries, Inc. v. Hughes, 105 Ariz. 334, 464 P.2d 617 (1970); A.R.S. § 12-1177(A). In Gangadean v. Erickson, 17 Ariz.App. 131, 495 P.2d 1338 (1972) the Court of Appeals stated:

"The court entertains serious doubts as to the propriety of awarding attorney's fees based upon contract in a forcible entry and detainer action.

This action being purely statutory is controlled by statute both as to procedure and damages collectible therein." (citations omitted.)

Id. at 134-35, 495 P.2d at 1341-42. Furthermore, A.R.S. § 12-1178 limits the scope of recovery in forcible entry and detainer actions to "restitution of the premises and for costs and, at plaintiff's option, for all rent found to be due and unpaid at the date of judgment." ² It is a generally accepted rule that attorney's fees are not recoverable unless they are expressly provided for either by statute or contract. Taylor v. Southern Pac. Transp. Co., 130 Ariz. 516, 637 P.2d 726 (1981). At the time of the trial there were no statutory provisions allowing a party to recover attorney's fees as part of a judgment in a forcible entry and...