COMMUNITY LEGAL SERVICES



ORGANIZATION

Address

City, State ZIP

Phone number

Attorney for Petitioner

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

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| |Court of Appeals No. |

|Petitioners | |

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|vs. |Superior Court No. |

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|Respondents | |

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|and | |

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|Real Parties in Interest. | |

PETITION FOR SPECIAL ACTION

______________________________________

Organization

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City, State ZIP

TABLE OF CONTENTS

STATEMENT OF CASE 5

JURISDICTIONAL STATEMENT 5

STATEMENT OF THE ISSUES 6

STATEMENT OF FACTS 7

ARGUMENT 8

Set out each argument in Capitols and give page number where commences. Note this Table of Contents and Table of Citations does not go with the Special Action, but is form purposes only. Table of Contents for this was erased.

CONCLUSION 16

APPENDIX A - Verified Complaint for Declaratory and Injunctive Relief, filed

date

APPENDIX B - Application for Temporary Restraining Order and Preliminary Injunction and Memorandum of Points and Authorities, filed date

APPENDIX C - Certification of Notification, filed date

APPENDIX D - Notice of Motion for Application for Preliminary Injunction, filed

date

Certificate of Compulsory Arbitration, filed date

Petition for Appointment of Guardian Ad Litem and Affidavit, filed

date

Petition for Appointment of Guardian Ad Litem and Affidavit, filed

date

Affidavit of , filed date

APPENDIX E - Affidavit of

TABLE OF CITATIONS

CASES

Bulova Watch Co. Super City Department Stores, 4 Ariz. App. 553, 422 P. 2d 184 (Ariz. Ct. App. 1967) 10

Drachman v. Jay, 4 Ariz App. 70, 417 P.2d 704 (Ariz. Ct. App. 1966) 10

Gotland v. Town of Cave Creek, 172 Ariz. 397, 837 P.2d 1132 (Ariz. Ct. App. 1991) 11

McCarthy Western Constructors, Inc. v. Phoenix Resort Corp.,169 Ariz. 520, 821 P.2d 181 (Ariz. Ct. App. 1991) 12

Schoen v. Schoen, 167 Ariz. 58, 804 P.2d 787 (Ariz. Ct. App. 1990) 15

Thomas v. Goudreault, 163 Ariz. 159, 786 P.2d 1010 (Ariz. Ct. App. 1989) 12

STATUTES AND RULES

16 A.R.S. Rules of Civil Procedure, Rule 65(d) 12

17B A.R.S. Special Actions, Rules of Proc., Rule 3 11

A.R.S. § 12-120.21(A)(1) 6

A.R.S. § 12-1801 12

A.R.S. § 12-2101(F)(2) 11

A.R.S. § 33-1315 13

A.R.S. § 33-1361(B) 5

A.R.S. § 33-1367 13

A.R.S. § 33-1368 7, 13

A.R.S. § 33-1369 7

A.R.S. § 33-1377 7, 13

A.R.S. §§ 12-1171 et.seq. 7

A.R.S. §§ 12-1831 et seq. 5

AUTHORITIES

Maricopa County Justice Court Statistics, 10

Superior Court of Arizona in Maricopa County Annual Statistical Report, 10

U.S. Census Bureau Maricopa County QuickFacts, 10

STATEMENT OF CASE

This special action addresses the Superior Court affirming the judgment of the justice court after appeal pursuant to Arizona Revised Statutes (“ARS”) §12-1179 by the superior court. The appellant has and continues to pay his rent currently pursuant to ARS §12-1179 (d). The first issue presented to this court are whether a litigant in justice court must request a record be made even though the justice of the peace did not advise the parties of the necessity of having a record in order to appeal the decision. The Superior Court decision (attached as Exhibit A), appears to rest on the ground that the appellant failed to request that the proceeding be recorded. However, there was no evidence before the Superior Court that the justice of the peace advised the parties that their right of appeal was dependant upon requesting a record being made of the proceedings pursuant to ARS §22-261(c). The only evidence, which was uncontroverted by the real party in interest, is by way of the affidavit of which was attached to appellant’s Appellate Memorandum (attached hereto as Exhibit B and incorporated herein) and appellant’s counsel representations raised during oral argument at the Superior Court. The Affidavit of , attorney for appellant, states that at the proceeding in justice court the real party in interest offered no documentary evidence and no witnesses testified or were sworn. In oral argument at the Superior Court, counsel for appellant stated that he was not aware that the proceeding in justice court was even a trial because the justice court in Scottsdale normally sets contested matters over for trial and that no witnesses were called or sworn nor any documents offered into evidence. Further, appellant’s attorney stated in oral argument, that he was never advised that the proceeding must be recorded in order to preserve the right to appeal, or that he would have obviously requested that a recording be made. Neither the affidavit of Jeffrey Kastner or the oral representations of appellant’s counsel were controverted by real party in interest’s counsel at the superior court hearing or in an affidavit filed on behalf of the real party in interest. The justice court’s records do not controvert the affidavit that the justice court failed to advise the parties of the necessity of having the proceeding recorded, nor does the justice court records contain any indication that any witnesses were sworn or any documents offered into evidence.

The second issue is whether appellant raised the issue of whether a landlord who receives government subsidies can be required to show good cause to evict a tenant. The superior court states that the appellant failed to meet it burden of proof. The only evidence of the proceeding in justice court was that offered by appellant by way of affidavit of Jeffrey Kastner, which clearly shows that there was not a trial. If the proceeding was a trial, then the real party in interest failed to prove a prima facie case in that it presented no evidence either through oral testimony or written documentation. The real party in interest did file a reply memorandum, which attaches a copy of a lease (though still not in proper evidentiary form). The unauthenticated lease (see Exhibit C attached hereto which is incorporated herein) clearly states that “good cause” must be shown to terminate a tenancy (see page 4 of lease at paragraph 18). It is likewise clear from the lease is subject to Federal laws (see paragraph 20 of lease) and that the property was financed partially through Low Income Housing Tax Credits (see paragraph 20 of lease). The answer squarely raises the issue by citing 26 USC Section 42(h)(6)(E)(ii) and the case of Cimarron Village v. Washington, 2003 Minn. App. LEXIS 471 (April 22, 2003). The superior court’s view that the lease can be terminated for material non-compliance does not mean that the landlord can evict for no reason under ARS 33-1375(c). The basis of the forcible detainer is on a 30 day notice of termination of month to month tenancy citing ARS Section 33-1375 citing no cause whatsoever (a copy of which is attached and incorporated as exhibit C-this notice is part of the justice court record).

The Superior Court then refused to consider two other errors set forth in Appellants Memorandum. The first issue is whether a court can enter a judgment in contested action without having any sworn testimony or properly proffered documentary evidence. The second issue raised is can a court award double damages under ARS 33-1375(c) without any evidence of “willful and not in good faith”. The superior court dismisses these assertions of error based on the failure of appellant to request a record and the court’s view that these allegations could not be verified. The proof presented was by way of uncontroverted evidence in the form of an affidavit of (exhibit A). The issue for this court is whether the justice court should be required to notify parties of the necessity of having record in order to preserve their right to appeal, and if it does then the must note that in its records. Further the superior court stated that the issues could not be raised for the first time on appeal and that the issues should have been objected to during the proceeding. The superior court does not characterize what took place as a trial, but as a proceeding. As appellant’s counsel argued during oral presentation in superior court, the proceeding was just a proceeding and not a trial. If a witness had been sworn, if documents had been offered, if the court had advised of the necessity to record, any of those procedures would indicate a trial was going forward, but none of those were done to give a clue that a trial had commenced.

JURISDICTIONAL STATEMENT

1. A special action is the proper method to review appeals from judgments of the superior court reviewing justice court judgments in forcible detainers. Thompson v. Gin, In and For the County of Pima (1976) 27 Ariz. App. 463, 556 P.2d. 17.

2. Rule 5 of the Arizona Rules of Procedure for Special Actions provides that the appellate court may grant an injunction under Arizona Rules of Civil Procedure 62(c). Rule 62(c) provides the court in its discretion may grant an injunction pending an appeal.

2. Petitioner lives alone in an apartment owned and operated by the Real Parties in Interest (“RPIs”) and various subsidiaries or associated companies. Petitioner’s rent is based upon 30 % of his income due to the fact that the RPI receives a federal subsidy under the Low Income Housing Tax Credit. The petitioner is a paraplegic and is wheelchair bound. In addition, petitioner is 46 years old and suffering from hypertension and cardio-vascular disease and if evicted by the superior court’s judgment would become homeless.

3. The Petitioner is a resident of Maricopa County, Arizona and the RPI apartment complex is located in Maricopa County, Arizona. The RPI is a subsidiary of , Inc., which petitioner is informed is a non-profit social service entity doing business in Maricopa County, Arizona..

4. The court of appeals has “jurisdiction to hear and determine petitions for special actions brought pursuant to the rules of procedure for special actions, without regard to its appellate jurisdiction.” A.R.S. § 12-120.21(A)(1).

5. Under the circumstances of this case, the Petitioner has no remedy that is equally plain, speedy and adequate as a special action to the Court of Appeals. There is no statutory right to appeal from a judgment of the Superior Court reviewing a justice court judgment.

STATEMENT OF THE ISSUES

1. Must the justice court advise the litigants of the necessity of recording the proceeding in order to preserve the right to appeal (ARS §22-261(c))?

2. Can the Superior Court require a party to request that a record be made in the justice court even though the party is not advised that a trial is proceeding or that the party must request a recording to preserve its right to appeal in the justice court?

3. Can the justice render a judgment at trial without swearing witnesses and taking testimony and without the admission of any documentary evidence in a contested matter?

4. Can the federal government require that where a landlord receives federal subsidies either through direct payments, reduced interest, or other benefits require that in order to evict a tenant the subsidized landlord must have “good cause” as defined by the Code of Federal Regulations? In other words, does a landlord have to comply with federal law when it accepts federal subsidies which require the landlord to comply with the program requirements of such subsidy program?

5. Can the Superior Court ignore the plain language of the lease, which requires good cause, when the notice which is the basis of the forcible detainer does not provide any cause whatsoever (in a purely private landlord/tenant relationship either party can terminate a month to month tenancy without any cause whatsoever). Further can the superior court ignore the plain language of the lease stating that the RPI is a Low Income Housing Tax Credit property and the answer raises the exact regulations to be followed?

STATEMENT OF FACTS

On May 8, 2003, the Scottsdale Justice Court issued a judgment for writ of restitution for an apartment occupied by the appellant and for one months rent and doubling the rent, as well as attorneys fees and court costs. Appellant filed and appeal and attempted to post the supercedes bond as specified under ARS Section 12-1179(d). The supercedes bond only required the appellant to post the rent due from the date of the judgment to next periodic rental date plus attorneys fees and costs. Appellant attempted to do so in order to stay the writ of restitution. However, the justice court refused the bond and demanded that appellant post the full judgment of rent, damages, attorneys fees and costs of $1560.07. Appellant was forced to file a petition in the Superior Court to have the justice court set the bond as specified in ARS Section12-1179(c) in the sum $449.13. The Superior Court granted the petition to set the bond as posted ($450.50 was posted by the appellant. Appellant has continued to pay his rent thereafter as part of the bond requirement. Appellant filed his opening Appellate Memorandum on June 12, 2003, Respondent (RPI) filed Appellee’s Memorandum on June 23, 3003, and Appellant filed his Reply Memorandum on July 2, 2003. Oral argument was held on September 15, 2003, before the Superior Court. The Superior Court issued a minute order on November 12, 2003, affirming the judgment of the justice court.

ARGUMENT

THE APPELLATE COURT CAN ACCEPT A SPECIAL ACTION REGARDING THE REVIEW OF A JUDGMENT BY THE SUPERIOR COURT OF AN APPEAL OF A JUSTICE COURT JUDGMENT

1. The only case dealing with a review of the superior court’s de novo review of a justice court decision held that a special action was appropriate. Thompson v. Gin, In and for County of Pima (1976), 27 Ariz.App. 463, 556 P.2d.17. See also Shenfield v. City Court of Tucson, Pima County (1968), 8 Ariz.App.81, 443 P.2d. 443, holding that an order of the justice court is subject to review by the court of appeal.

2. ARS§12-120.21.4 provides the court of appeals has “[j]urisdiction to hear and determine petitions for special actions brought pursuant to the rules of procedure for special actions, without regard for its appellate jurisdiction.”

3. Further, ARS §12-120.21.3 gives the court of appeals ([j]urisdiction to issue injunctions and other writs and orders necessary and proper to the complete exercise fo its appellate jurisdiction. This petition is requesting that the writ of restitution for the residence of appellant be stay pending final disposition of this special action. Rule 5 of the Arizona Rules of Procedure for Special Actions provides that the appellate court may grant an injunction under Arizona Rules of Civil Procedure 62(c). Rule 62(c) provides the court in its discretion may grant an injunction pending an appeal.

4. In Maricopa County in 2002, approximately 76,400 forcible detainers were filed in the 23 justice courts of the county.[1] This number is significantly greater than the total number of civil and criminal law cases filed in all the superior courts in Maricopa County for 2002.[2] The average household size in Maricopa County is approximately 2.67 persons and if 76,400 forcible detainers are filed each year, this equates to nearly 204,000 residents or 6.2 percent of the population of Maricopa County.[3] Forcible detainers make up between 16.5% in 1998 and 21.8% in the first two months of 2003 of the total cases, including traffic cases, in the justice courts. For the first two months of 2003, forcible detainers make up 48.8% of the total cases.[4] Except for traffic citations (which make up about 45% of the 2002 cases in the justice courts), the evictions are the primary reason people have contact with the justice court system. Id. Thus, by shear numbers alone, the issues addressed by this special action are of statewide interest, importance and public significance. There are no cases setting forth the procedures or process of trials, advisement of process of appeal, nor applicability the basic rules evidence including the requirement of taking sworn testimony and requiring submission of documents in order to properly issue a judgment in justice court.

5. With respect to the nature and appropriateness of a special action, the Petitioner must have no equally plain, speedy and adequate remedy by appeal or other civil action. The significant and irreparable harm that results from the unlawful eviction of tenants, particularly those of low income, and the need to rectify the situation when the superior court clearly abused its discretion is the only remedy available to the tenant. A tenant has no statutory right to appeal a decision by the superior court from an appeal of justice court forcible detainer. Thus, a special action is proper and the only remedy available..

7. Under 17B A.R.S. Special Actions, Rules of Proc., Rule 3, a petitioner may raise only certain questions in a special action. In this case, the applicable and appropriate question raised by the Petitioner is “whether a determination was arbitrary and capricious or an abuse of discretion.”

8. With respect to the review of the decision of the superior court, “[o]n appeal, the scope of review is limited to whether a clear abuse of judicial discretion has been shown. An abuse of discretion exists [w]here there has been an error of law committed in the process of reaching the discretionary conclusion, or where the trial judge clearly erred in finding the facts or applying them to the legal criteria for granting injunctive relief.” See Gotland v. Town of Cave Creek, 172 Ariz. 397, 399, 837 P.2d 1132 (Ariz. Ct. App. 1991). Thus, to support review by the appellate court, the Petitioner must show that the trial court clearly erred in finding the facts or applying them to the legal criteria upon which its judgment was based. The facts here are simple in that the only evidence before the court as to whether the justice court advised the parties of the necessity of having a record made shows that the court failed to do so. Further, the evidence before the court shows that no sworn testimony was taken nor documents introduced into evidence. Also, that the only document shown to the court clearly states that “good cause” was the only way the tenancy could be terminated and that the notice given to the tenant did not state any cause whatsoever. In a case where the facts show a blatant failure to follow the procedural rules for justice courts as well total disregard for the rules of evidence by not requiring sworn testimony or receipt of documents a clear abuse of discretion must be found.

IS THE JUSTICE COURT REQUIRED TO ADVISE THE PARTIES OF NECESSITY OF HAVING A RECORD TO APPEAL PRIOR TO RENDERING ITS JUDGMENT

1. ARS §22-261(c) clearly states “[a]t the beginning of each proceeding the judge shall advise the parties that their right to appeal is dependent upon their requesting that a record be made of the justice court proceeding.” There appears no notation or entry in the records of the justice court file concerning whether any such advisement was done. The affidavit of Jeffrey Kastner does not state that the court so advised and at oral argument, Jeffrey Kastner advised the court and in Appellant’s Reply Brief advised the court that no such advisement was done by the court. These statements by Jeffrey Kastner were not controverted by the real party in interest. However, the superior court dismisses this evidence and states in its decision that “Ironically there is no record of the proceeding to substantiate appellant’s claim.” This begs the question, in that had the court so advised, there would have been a record, but since the court failed to follow the statute no record exists and according to the superior court no appeal can be perfected

2. It would appear that the justice court has the affirmative duty to note in its records that the above advisement concerning making a record was made and that the parties either requested a record be made or declined the right to have a record made. It should not be up to an appellant to attempt to prove that no such advisement was made. The burden should be on the court and not the parties when the statute clearly requires that such advisement be completed. In the instant case, the RPI does not take controvert the affidavit of Appellant’s counsel nor respond to its Reply Brief, there is no evidence in the court records showing compliance with ARS Section 22-261(c).

ON THE MERITS THE APPELLANT WILL CLEARLY BE SUCESSFUL BECAUSE THE LEASE PROVIDES THAT A LEASE MAY BE TERMINATE ONLY FOR GOOD CAUSE AND THE LANDLORD’S NOTICE STATES

NO CAUSE WHATSOEVER

1. The lease discussed and attached to Respondent’s Reply Brief states at 4, paragraph 18. b. as follows:

(Any termination of this Agreement by the landlord must be carried out in accordance with State and local law and the terms of this Agreement. The Landlord may terminate this Agreement only for:

(1) The Resident’s material non-compliance with the terms of this Agreement;

(2) The Resident’s material failure to carry out obligations under any State landlord and tenant act; or

(3) Other good cause, which includes but is not limited to, the Resident’s refusal to accept the Landlord’s proposed change to this Agreement. Termination for “other ‘good cause’ may only be effective at the end of any initial or successive term.” While the ARLTA provides that a tenant may recover possession or terminate the lease and recover damages, only the recovery of possession places the tenant back in the position they were before the unlawful eviction with the least amount of harm and perhaps the avoidance of substantial and irreparable harm.

The notice served on the Appellant to terminate his tenancy states attached as

Exhibit C to the Appellant’s Petition for Issuance of Immediate Stay of Writ of Execution for

Possession Pursuant to ARS 12-1179(d) Pending Judgment on Appeal to Superior Court states only that “Notice is hereby given pursuant to ARS Section 33-1375 that your tenancy in the herein described premises now possessed and occupied by you shall terminate on 4-30-03.”

No cause whatsoever is set forth. This notice as a matter of law fails to terminate the tenancy according to the terms of the lease agreement of the parties.

2. When the RPI bought into getting a government subsidy in the form of tax credits, it also bought into complying with federal requirements. 26 USC Section 42(h)(6)(E))(ii)(l) prohibits an eviction except for good cause where the housing unit is being subsidized by the United States Government. In Cimarron Village v. Washington (2003), 659 N.W. 2d 811, the Minnesota Court of Appeals required the landlord to show good cause to evict a tenant where the landlord received federal tax credits.

CONCLUSION

It is obviously of great statewide interest and importance that the courts require landlords to follow the process for evictions as enacted by the legislature and set out in the ARLTA. If persons could pick and choose what laws they wish to follow, it would lead to a lawless society. Laws and requirements to follow them are what makes a society civilized. To allow residential landlords to lock out without legal process, a tenant whom they feel has breached an agreement but have no proof to that effect, is tantamount to having no laws at all. Others will judge our society on how it treats the poor and less fortunate. To allow the utter disregard of one’s right to remain in possession of one’s home and personal possessions without any, due or otherwise, process of law, necessarily denigrates the societal position of residential tenants in our society.

Based on the above analysis, the Superior Court should have issued a TRO and OSC in favor of the Petitioner. Furthermore, the court must issue TROs in all circumstances involving the eviction of residential tenants without legal process in violation of the ARLTA when a tenant so desires such a preliminary remedy. In light of the Superior Court’s error, the Court of Appeals should issue a Temporary Restraining Order placing the Petitioner back in possession of the apartment unit and instruct the Superior Court to issue an Order to Show Cause.

RESPECTFULLY SUBMITTED this _____ day of

ORGANIZATION

By ______________________________________

Attorney for Petitioner

COPY of the foregoing

Served this _____ day of to:

By_________________________

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[1] See Maricopa County Justice Court Statistics, .

[2] See Superior Court of Arizona in Maricopa County Annual Statistical Report, .

[3] See U.S. Census Bureau Maricopa County QuickFacts, .

[4] See Maricopa County Justice Court Statistics, supra.

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