In a forcible entry and detainer (“FED”) action, the trial court held the defendant guilty of forcible detainer. The trial court entered a signed order granting a writ of restitution. The order noted that “[n]o further matters remain pending” and entered judgment “pursuant to ARCP Rule 54(c)” but it also provided “[f]or Court Costs and Attorney’s fees to be proven by Affidavit filed by the Plaintiff.” The plaintiff filed a motion and affidavit for attorneys’ fees and costs. The defendant filed a notice of appeal and later filed an objection to the motion for fees and costs. The plaintiff replied and the trial court issued a minute entry awarding fees but deferring “awarding costs until the time a final judgment is entered.” That ruling was not signed, and the trial court made no further docket entries during the pendency of the appeal.
FED actions are governed by the Rules of Procedure for Eviction Actions (“RPEA”), which generally do not incorporate the Arizona Rules of Civil Procedure. Rule 17, RPEA, provides for appeals of FED actions and incorporates only the Arizona Rules of Civil Appellate Procedure. The court of appeals held that a finality determination under Rule 54, Ariz. R. Civ. P., does not apply to FED actions. Under Rule 13 of the RPEA, a court is required to resolve and award attorneys’ fees as part of the final judgment. Accordingly, a judgment in a FED action is not final without an award of attorneys’ fees.
The court of appeals dismissed for lack of jurisdiction. The initial order, which included the irrelevant Rule 54 finality language, was not final under the RPEA because it did not determine attorneys’ fees. The later unsigned minute entry awarding fees also was never entered as a final order. For those reasons, the notice of appeal was premature.
The court of appeals recognized that its holding creates a practical problem because the RPEA does not provide any means to stay an eviction order without filing an appeal or challenging the courts’ order. An appeal will be functionally unavailable to a litigant that is evicted by a non-final order. To avoid this, the court of appeals suggested that trial courts consider issuing immediately enforceable judgments of possession only in conjunction with final orders that include the determination of attorneys’ fees.
Judge Eckerstrom authored and Judges Eppich and Espinosa concurred.
Posted by: Brian K. Mosley