Mason v. Cansino
Decision Date | 29 June 1999 |
Docket Number | No. 2 CA-CV 98-0222.,2 CA-CV 98-0222. |
Citation | 990 P.2d 666,195 Ariz. 465 |
Parties | Douglas MASON and Mary Mason, husband and wife, Plaintiffs/Appellees, v. Charles CANSINO and Norma Cansino, husband and wife; John P. Wilde, Co-Trustee, Cancasa Land Trust, Defendants/Appellants. |
Court | Arizona Court of Appeals |
Fitzgibbons Law Offices, P.L.C. by Robert M. Yates, Casa Grande, Attorneys for Plaintiffs/Appellees.
Charles Cansino and Norma Cansino, Florence, In Propria Personae.
John P. Wilde, Glendale, In Propria Persona.
¶ 1 In 1998, appellees Douglas and Mary Mason (the Masons) purchased four parcels of property at a public auction held by the Internal Revenue Service (IRS). After the sale, the district director of the IRS issued the Masons a district director's deed to each parcel. The Masons demanded that appellants Charles Cansino, Norma Cansino, and John P. Wilde (collectively, the Cansinos) relinquish possession of the property, but the Cansinos refused. The Masons filed a forcible entry and detainer complaint in superior court. After a bench trial, the court ordered the Cansinos to vacate the property. Although the Cansinos have now vacated the property, they have appealed their ouster, alleging that they were improperly deprived of a jury trial in the forcible detainer action and that the superior court was without jurisdiction to consider a forcible entry and detainer complaint involving a district director's deed. We affirm.
¶ 2 The Cansinos contend that the trial court erred in failing to conduct a jury trial on the Masons' forcible entry and detainer complaint. The Masons respond that the Cansinos waived their right to a jury trial under A.R.S. § 12-1176(B) because they failed to request one, and because only issues of law were presented at the trial, a jury was not necessary.
¶ 3 Section 12-1176(B), relating to forcible entry and detainer, states:
If the plaintiff does not request a jury, the defendant may do so when he appears, and the jury shall be summoned in the manner set forth in subsection A.
¶ 4 The Cansinos do not dispute that they failed to request a jury trial, but they argue that article II, § 23, of the Arizona Constitution, nonetheless, required that the court accord them one. They assert that their failure to ask for the jury did not constitute a waiver and, thus, they are entitled to a reversal of the judgment and to a remand for a jury trial. Although they acknowledge that article VI, § 17, of the Arizona Constitution permits a litigant to waive a jury trial in a civil case, they appear to argue that the waiver must be affirmatively made by both parties. The converse is correct: the right to a jury trial in civil cases is presumptively waived unless at least one litigant demands a jury trial under Rule 38(b) or (c), Ariz. R. Civ. P., 16 A.R.S. "While the right to a trial by jury is a most substantial right, it may be waived by a failure to demand it, Rule 38(d), Rules Civ.Proc., Sec. 21-910, A.C.A.1939." Moran v. Jones, 75 Ariz. 175, 178, 253 P.2d 891, 893 (1953). Because the Cansinos failed to demand a jury as required by § 12-1176(B), they waived their right.
¶ 5 The Cansinos next assert that A.R.S. §§ 12-1173 and 12-1173.01 do not provide for a forcible detainer action based upon a deed from the IRS district director. They note, correctly, that forcible detainer is a statutorily created remedy. Indeed, forcible detainer was created by our legislature to provide "a summary, speedy and adequate remedy for obtaining possession of the premises." Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 204, 167 P.2d 394, 397 (1946). Because the IRS district director's deed under which the Masons claim is not specifically mentioned, the Cansinos argue that the court was without subject matter jurisdiction. When we interpret a statute, we do so de novo. City of Tucson v. Pima County, 190 Ariz. 385, 949 P.2d 38 (App.1997).
¶ 6 Section 12-1173 is the general forcible entry and detainer statute, which has existed since territorial days. In its current form, it states:
In 1984, our legislature added § 12-1173.01, which states:
Section 12-1173.01, then, enlarges the types of deeds, conveyances, and process that entitle a party to assert a right to possession in forcible detainer, but it does not specifically mention an IRS district director's deed. We must therefore decide whether that absence is fatal to the trial court's jurisdiction.
¶ 7 According to the language of each deed, the district director issued the deeds pursuant to 26 U.S.C. §§ 6331 through 6335. Those statutes set out the procedure to satisfy a levy made pursuant to 26 U.S.C. § 6331 by sale of property.1 The presale notice, sale procedure, and provision for issuance of a deed set out in §§ 6330 through 6339 are...
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