Socaa v. Dtt Acc

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SEDONA-OAK CREEK AIRPORT AUTHORITY INC.,
Plaintiff/Appellee,

v.

DAKOTA TERRITORY TOURS ACC,
Defendant/Appellant.

No. 1 CA-CV 20-0158
FILED 1-12-2021

Appeal from the Superior Court in Yavapai County
No. V1300CV201980119
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Henze Cook Murphy PLLC, Phoenix
By Kiersten A. Murphy
Co-Counsel for Plaintiff/Appellee

Law Office of Tony S. Cullum PC, Flagstaff
By Tony S. Cullum
Co-Counsel for Plaintiff/Appellee

Ahwatukee Legal Office PC, Phoenix
By David L. Abney
Counsel for Defendant/Appellant
 SOCAA v. DTT ACC
Decision of the Court

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in
which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

M O R S E, Judge:

¶1 Dakota Territory Tours AAC ("Dakota") appeals from an
order granting summary judgment and finding it guilty of forcible detainer.
For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND1

¶2 Dakota conducts a helicopter and fixed-wing air tour business
out of the Sedona Airport under a lease agreement with Sedona-Oak Creek
Airport Authority Inc. ("SOCAA"), which manages the airport's operations.
In 2012, Dakota entered into a 24-month commercial activity lease with
SOCAA for property on the Sedona Airport ("the Property"). The parties
later extended the lease to expire in April 2017.

¶3 In 2014, Dakota initiated a civil lawsuit against SOCAA over
a lease dispute. The parties reached a settlement agreement ("Settlement
Agreement") in April 2017, before the lease expired. In pertinent part, the
Settlement Agreement provided the following:

[SOCAA] has agreed, and hereby confirms that it has agreed
to continue leasing the existing property pursuant to the
existing lease on a month-to-month basis until an RFP issues.
In the event Dakota is the successful bidder, then a new lease
will issue to Dakota and its use of the premises will not be
interrupted. In the event Dakota is not the successful bidder,
Dakota must vacate the premises no later than thirty (30) days
after receipt of the (30) day notice . . . which [SOCAA] may
provide at any time on or after the date of the award . . .
advising of the date of the award and that Dakota must vacate

1 Dakota filed a "Motion to Reschedule Oral Argument" on November
9, 2020, then filed a "Withdrawal of the Motion to Reschedule Oral
Argument." It is ordered accepting Dakota's withdrawal and denying the
motion as moot.

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Decision of the Court

the premises within thirty (30) days. No other notice of
termination shall be required from [SOCAA].

¶4 SOCAA issued a request for proposals ("RFP") in May 2017.
The RFP provided that "[t]he 'best responsible proponent' shall be that
proponent which [SOCAA] and Yavapai County may determine," and
"[t]he Yavapai County Board of Supervisors will consider the proposals on
or before June, 2017," and that "any proposal will be subject to Federal
Aviation Administration review and approval prior to commencement of
any lease/agreement." SOCAA received proposals from both Dakota and
Guidance Air Service ("Guidance"). On June 26, 2017, SOCAA notified
Guidance it had been selected. SOCAA did not consult either the Yavapai
County Board of Supervisors ("Board") or the Federal Aviation
Administration ("FAA") before deciding the best proponent. SOCAA
notified Dakota that its proposal was not chosen and it had thirty days to
vacate the Property.

¶5 Instead of vacating the premises, Dakota initiated another
civil lawsuit ("the 2017 lawsuit") in Yavapai County Superior Court seeking
a temporary restraining order precluding SOCAA from evicting Dakota,
arguing that SOCAA breached the RFP because the Board and FAA had not
participated in selecting the Guidance proposal. The superior court initially
granted a temporary restraining order and held a three-day evidentiary
hearing on Dakota's claims. At the end of the hearing, the court invited
SOCCA "to file a motion with the Court to lift the injunction."

¶6 SOCAA then filed a motion to dissolve the injunction. The
court held argument, found that SOCAA established that the Board was
given the requisite opportunity to participate and the FAA was not required
to approve, and dissolved the injunction in November 2017.

¶7 SOCAA immediately sent Dakota a new termination notice
demanding Dakota vacate the Property. But Dakota appealed, and the
matter stayed until this court affirmed the dissolution of the preliminary
injunction in April 2019. See Dakota v. Sedona-Oak Creek Airport Auth. Inc., 1
CA-CV 17-0767, 2019 WL 1499853 (Ariz. App. Apr. 4, 2019) (mem. decision).

¶8 After this court issued its decision, SOCAA notified Dakota it
would bring a forcible entry and detainer ("FED") action if Dakota did not
vacate the Property. Dakota failed to vacate the Property, and SOCAA filed
a FED complaint. The superior court stayed the FED action until this court
issued a mandate for the 2017 lawsuit. We issued an amended mandate in
October 2019.

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Decision of the Court

¶9 Dakota requested a jury trial in the FED action. The superior
court initially granted Dakota's request for a jury trial in a preliminary
ruling before the oral argument. SOCAA then moved for summary
judgment, which Dakota opposed. The court granted summary judgment
in favor of SOCAA and found Dakota guilty of forcible detainer under
A.R.S. §§ 12-1171(3) and -1173(1). The court denied Dakota's request for a
jury trial, noting that after considering the motions and oral arguments, it
determined there was "no material question of fact related to the right to
possession":

Dakota's right to remain on the property extinguished when
SOCAA completed the RFP process by presenting the
proposals to the County Board of Supervisors. Importantly,
Judge Napper lifted the injunction in the civil cases finding
that SOCAA had complied with the RFP. The tenancy clearly
terminated after SOCAA issued the RFP and selected
Guidance as the winner of the RFP. Following the appeal and
issuance of the mandate, written notice to vacate was sent to
Dakota and Dakota failed to vacate the premises. The
Settlement Agreement provided for 30 days' notice to vacate
the property following the issuance of the RFP if the winner
was not Dakota. SOCAA has provided notice in excess of that
time. Dakota stated at oral argument that it did not dispute
notice. The court finds based on the facts that Dakota has
retained possession after its tenancy has terminated and after
it received written demand of possession by SOCAA.

¶10 A signed judgment was filed on March 6, 2020. The judgment
found Dakota guilty of forcible detainer of the Property and awarded
SOCAA attorney fees and costs. Dakota timely appealed. We have
jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶11 Dakota claims the superior court erred by failing to grant its
request for a jury trial, overlooking genuine issues of material fact, and
finding that SOCAA has the right of actual possession of the Property.

I. Denial of Jury Trial.

¶12 Dakota claims the superior court violated its statutory and
constitutional right to a jury trial when it entered summary judgment.
"Interpreting rules, statutes, and constitutional provisions raises questions

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of law, which we review de novo." State v. Hansen, 215 Ariz. 287, 289, ¶ 6
(2007).

A. Right to Jury Trial Under A.R.S. § 12-1176.

¶13 Dakota argues that A.R.S. § 12-1176 grants parties to FED
actions "a substantive, absolute right to a jury trial" that, if timely exercised,
no trial court can deny.

¶14 A.R.S. § 12-1176 provides:

(A) If a jury trial is requested by the plaintiff, the court shall
grant the request. If the proceeding is in the superior
court, the jury shall consist of eight persons, and if the
proceeding is in the justice court, the jury shall consist of
six persons. The trial date shall be no more than five
judicial days after the aggrieved party files the complaint.

(B) If the plaintiff does not request a jury, the defendant may
do so on appearing and the request shall be granted.

(C) The action shall be docketed and tried as other civil
actions.

¶15 Dakota argues that the repeated use of "shall" in A.R.S. § 12-
1176(B) highlights the substantive nature of the right to a jury trial in FED
actions. However, the language in A.R.S. § 12-1176(B) that a request for a
jury trial "shall be granted" is not dispositive. See Orme Sch. v. Reeves, 166
Ariz. 301, 308-09 (1990) (finding that when there are no material issues of
fact, summary judgment does not offend the Arizona Constitution's
guarantee that "the right to jury trial 'shall remain inviolate'") (quoting Ariz.
Const. art. 2, § 23); Goldman v. Kautz, 111 Ariz. 431, 432 (1975) (interpreting
statutory language that "[a] trial by jury shall be had if demanded" as being
procedural, rather than substantive).2

2 Dakota's reliance on cases recognizing a right to a jury trial in
criminal cases is misplaced. See Highway Prods. Co. v. Occupational Safety &
Health Review Bd., 133 Ariz. 54, 57-58 (App. 1982) ("[T]he constitutional
rights of a criminal defendant have nothing to do with proceedings . . .
which may result in the imposition of civil penalties."); cf. also Hoyle v.
Superior Court, 161 Ariz. 224, 226-27 (App. 1989) (noting historical
distinction between civil and criminal actions in determining whether there

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¶16 Rule 11(d) of the Arizona Rules of Procedure for Eviction
Actions ("Eviction Rules") provides that "[i]f no factual issues exist for the
jury to determine, the matter shall proceed to a trial by the judge alone
regarding any legal issues or may [be] disposed of by motion or in
accordance with these rules, as appropriate." Dakota argues this rule
conflicts with the right to a jury trial provided in A.R.S. § 12-1176 and,
therefore, the rule must fail. We disagree. If the statute provides a
procedural, as opposed to a substantive, right to a jury trial, then the rule
prevails. See Duff v. Lee, --- Ariz. ---, 476 P.3d 315, 318, ¶ 12 (2020) (stating
that if there is a conflict "between a procedural statute and a rule, the rule
prevails") (quoting Seisinger v. Siebel, 220 Ariz. 85, 88-89, ¶ 8 (2009)); see
also Ariz. Const. Art. 6, § 5(5) (conferring power on the supreme court "to
make rules relative to all procedural matters in any court"). Thus, we "first
must determine whether an irreconcilable conflict exists between the
statute and rule," and only "then determine whether the statute is
procedural or substantive." Duff, --- Ariz. ---, 476 P.3d at 318, ¶ 12.

¶17 There is no irreconcilable conflict between A.R.S. § 12-1176
and Eviction Rule 11(d). See id. at ¶ 14 ("[W]e avoid interpretations that
unnecessarily implicate constitutional concerns." (internal quotation marks
and citation omitted)); Marianne N. v. Dep't of Child Safety, 243 Ariz. 53, 57,
¶ 18 (2017) (deciding whether a statute is substantive or procedural is not
necessary where they can be harmonized); Hansen, 215 Ariz. at 289, ¶ 7
("Rules and statutes should be harmonized wherever possible and read in
conjunction with each other." (internal quotation marks and citation
omitted)). Read together, A.R.S. § 12-1176 and Eviction Rule 11(d) provide
that a court "shall grant the request" for a jury trial if "factual issues exist for
the jury to determine." See also Brewster-Greene v. Robinson, 34 Ariz. 547, 552
(1929) ("But in this [forcible detainer action] . . . there was nothing for a jury
to pass upon. The salient or controlling facts appear from the pleadings,
the lease, and the subsequent compromise agreement. The question to be
decided was one of law and for the court."). Because the use of "shall" does
not confer a right to a jury trial under any circumstance, but rather a right
to a jury trial if there are contested issues of fact, there is no conflict. See
Montano v. Luff, --- Ariz. ---, 2020 WL 7488071, *4, ¶¶ 15-16 (App. Dec. 21,
2020) (finding no irreconcilable conflict between the mandatory language
of A.R.S. § 12-1176(B) and Eviction Rule 11(d)).

is a right to a jury trial in paternity actions); State ex rel. Wanberg v. Smith,
211 Ariz. 101, 104, ¶ 10 (App. 2005) (emphasizing the need "to distinguish
between the two settings in which the language pertaining to jury trials is
placed").

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 SOCAA v. DTT ACC
Decision of the Court

B. Constitutional Right to a Jury Trial.

¶18 Dakota also argues the superior court deprived it of its
constitutional right to a jury trial when it entered summary judgment. See
Ariz. Const. art. 6, § 17 ("The right of jury trial as provided by this
constitution shall remain inviolate . . . ."). However, the Arizona Supreme
Court has long held that disposition on summary judgment "does no
violence to our guarantee of trial by jury" under the Arizona Constitution.
Orme Sch., 166 Ariz. at 309.

¶19 If summary judgment was proper, the superior court did not
deprive Dakota of its statutory or constitutional rights by denying it a jury
trial. Id. We, therefore, turn to an analysis of whether the superior court
erred in granting summary judgment.

II. Summary Judgment.

¶20 Dakota argues the superior court was precluded from
entering summary judgment. First, Dakota argues the Eviction Rules
categorically preclude courts from entering summary judgment in FED
actions. Second, Dakota claims the superior court overlooked a host of
genuine issues of material fact that made summary judgment improper.

A. Summary Judgment in FED Actions.

¶21 Dakota claims the superior court was not entitled to issue
summary judgment, arguing the Eviction Rules do not incorporate Arizona
Rule of Civil Procedure 56.

¶22 Dakota correctly notes the Eviction Rules replace the Arizona
Rules of Civil Procedure ("Civil Rules") in eviction actions. Bank of New York
Mellon v. Dodev, 246 Ariz. 1, 8, ¶ 22 (App. 2018). The Civil Rules apply in
eviction actions "only when incorporated by reference" in the Eviction
Rules. Eviction Rule 1. But even if the superior court erred in citing Civil
Rule 56, Dakota's argument fails because Eviction Rules 9(h) and 11(d)
expressly contemplate the summary-judgment procedure employed in this
case. Eviction Rule 11(d) provides "[i]f no factual issues exist for the jury to
determine, the matter shall proceed to a trial by the judge alone regarding
any legal issues or may [be] disposed of by motion or in accordance with
these rules, as appropriate."3 Further, Eviction Rule 9 permits either party

3 Under the facts of this case, we discern no meaningful difference
between the procedures contemplated by Civil Rule 56 ("The court shall

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to make "appropriate motions" and provides the court power to "dispose of
the motion summarily." We need not consider whether Civil Rule 56 is
incorporated because Eviction Rule 11(d) expressly authorizes judges to
dispose of the matter by motion if no factual issues exist. Accordingly, the
superior court did not err in employing a summary-judgment procedure in
this case.

B. Genuine Issues of Material Fact.

¶23 Dakota argues that a host of contested, genuine, and material
facts precluded summary judgment under Eviction Rule 11(d). The
superior court entered summary judgment, finding that Dakota's tenancy
clearly terminated after SOCAA selected Guidance as the winner of the RFP
and Dakota received written demand of possession by SOCAA.

¶24 "We review de novo whether summary judgment is
warranted, including whether genuine issues of material fact exist and
whether the superior court correctly applied the law." Specialty Cos. Grp.
LLC v. Meritage Homes of Ariz. Inc., 248 Ariz. 434, 438, ¶ 7 (App. 2020). We
consider the evidence and all reasonable inferences in the light most
favorable to Dakota, the nonmoving party. Id.

¶25 "On the trial of an action of forcible entry or forcible detainer,
the only issue shall be the right of actual possession and the merits of title
shall not be inquired into." A.R.S. § 12-1177(A). The purpose of FED actions
is to afford "a summary, speedy, and adequate remedy for obtaining
possession of premises withheld by tenants . . . ." Old Bros. Lumber Co. v.
Rushing, 64 Ariz. 199, 204-05 (1946). This purpose "would be entirely
frustrated if the defendant were permitted to deny his landlord's title, or to
interpose customary and usual defenses permissible in the ordinary action
at law." Id. at 205.

¶26 A person is guilty of forcible detainer if he:

Wilfully and without force holds over any lands, tenements
or other real property after termination of the time for which
such lands, tenements or other real property were let to him

grant summary judgment if the moving party shows that there is no
genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law."), and those contemplated by Eviction Rule
11(d) ("If no factual issues exist for the jury to determine, the matter . . . may
[be] disposed of by motion or in accordance with these rules, as
appropriate.").

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or to the person under whom he claims, after demand made
in writing for the possession thereof by the person entitled to
such possession.

A.R.S. § 12-1171(3). Forcible detainer is also established when "[a] tenant at
will or by sufferance or a tenant from month to month or a lesser period
whose tenancy has been terminated retains possession after his tenancy has
been terminated or after he receives written demand of possession by the
landlord." A.R.S. § 12-1173(1).

¶27 Dakota's brief lists fifteen issues it claims are genuine issues
of material fact, but Dakota does not provide citation, argument, or
authority to explain why these factual issues should have precluded
summary judgment. Thus, Dakota has waived these claims. See ARCAP
13(a)(7) ("An 'argument' . . . must contain . . . contentions concerning each
issue presented for review, with supporting reasons for each contention,
and with citations of legal authorities and appropriate references to the
portions of the record on which the [party] relies."); see also Stafford v. Burns,
241 Ariz. 474, 483, ¶ 34 (App. 2017) (finding appellant's failure to develop
an argument in a meaningful way constituted waiver).

¶28 Moreover, we find these fifteen factual issues to be primarily
subsumed within or duplicative of an additional six issues raised by Dakota
related to the validity and enforceability of the RFP. In summary, Dakota
asserts the following six issues were contested, genuine, and material issues
of fact that the superior court overlooked: (i) the Board and FAA did not
review and approve the RFP;4 (ii) the RFP featured an illegal provision; (iii)
the RFP was for a different building and site than the Property; (iv) Dakota's
business would have been interrupted had it been awarded the RFP; (v)
Guidance's bid did not comply with the RFP's stated requirements; and (vi)
the RFP was a "sham" and just a pretext to eject Dakota from the Property.

¶29 We agree with the superior court that Dakota's asserted issues
are impermissible counterclaims related to the Settlement Agreement and
"are already subject of an existing case between the parties . . . ." Such
"counterclaims, offsets and cross complaints are not available either as a
defense or for affirmative relief" in this FED action. See Old Bros. Lumber
Co., 64 Ariz. at 204-05. Because the claimed factual disputes are not

4 SOCAA asserts that this issue has already been resolved in its favor
in prior proceedings. See Dakota, 2019 WL 1499853, at *3, ¶ 19. Because we
conclude these issues are not pertinent to the FED action, we do not address
SOCAA's argument.

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pertinent to the FED proceedings, they are not material issues of fact
precluding summary judgment.

C. Right of Actual Possession.

¶30 The parties agree that the Settlement Agreement determined
the right of actual possession. Because the Settlement Agreement allowed
Dakota "to continue leasing the existing property . . . until an RFP issues[,]"
Dakota argues the RFP for a different facility was not valid and it retains a
right of possession under the Settlement Agreement until SOCAA issues a
valid RFP.

¶31 We disagree. "[T]he right to actual possession is the only issue
to be determined in [an FED] action." Old Bros. Lumber Co., 64 Ariz. at 204.
The Settlement Agreement provided Dakota with a right of possession only
until the RFP was issued, a winner selected, and notice provided. The
Settlement Agreement does not define or set forth requirements for the RFP.
Thus, the only factual issues relevant to the FED action are whether SOCAA
issued an RFP, selected Guidance as the winner, and provided Dakota
notice to vacate. Although Dakota contests the terms of the RFP, it admits
one was issued, SOCAA notified Guidance that its proposal had been
selected, SOAA notified Dakota that its proposal had not been selected, and
SOCAA provided Dakota notice that its lease had been terminated. 5 Thus,
under the Settlement Agreement, Dakota's right to possession of the
Property ended. Dakota's claims that the RFP was flawed may give rise to
damages claims for breach of contract or the covenant of good faith and fair
dealing, and are currently being litigated in a separate civil action. See
Curtis v. Morris, 184 Ariz. 393, 398 (App. 1995) ("Because an FED action does
not bar subsequent proceedings between the parties to determine issues
other than the immediate right to possession, those issues are better
resolved in proceedings designed to allow full exploration of the issues
involved."). But those claims do not provide a right to continued possession
of the Property after the RFP was awarded and provide no defense to
forcible detainer under A.R.S. §§ 12-1171(3) and -1173(1). The superior
court did not err in finding Dakota had no right to continued possession of
the Property. See Taylor v. Stanford, 100 Ariz. 346, 349 (1966) (disapproving
of litigants who "seek to convert unlawful detainer into a suit for specific
performance"). Thus, we affirm the court's judgment in its entirety.

5 Although Dakota acknowledges that SOCAA sent notices, it does
not concede that "the notice was accurate or effective."

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III. Attorney Fees and Costs on Appeal.

¶32 SOCAA requests an award of attorney fees and costs incurred
on appeal pursuant to ARCAP 21, ARCAP 25, and A.R.S. § 12-349(A)(3).
Aside from the unsupported statements that Dakota's appeal "was solely
for the purpose of delay" and "unreasonably expanded and delayed this
FED proceeding," SOCAA does not develop an argument for an award of
attorney fees. Thus, we exercise our discretion and decline to award
attorney fees to either party. See ARCAP 13(a)(7); Bank of New York Mellon,
246 Ariz. at 12, ¶¶ 39-41 (declining to impose sanctions under ARCAP 25
where the requesting party had failed to offer argument justifying
sanctions).

¶33 As the prevailing party, SOCAA is entitled to costs upon
compliance with ARCAP 21.

CONCLUSION

¶34 We affirm the judgment of the superior court.

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

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