671 P.2d 907 | Ariz. | 1983
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?
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.
*468 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.”
We note that although Stag’s request for attorney’s fees is not permissible as part of the forcible entry and detainer action, this decision does not preclude Stag from bringing a separate suit for attorney’s fees based upon the contract provisions in the law. The disposition of this matter by the Court of Appeals is approved.
. We note that the Arizona Legislature has recently amended A.R.S. § 33-1315(A)(2) making a prevailing party in a forcible entry and detainer action eligible to be awarded attorney’s fees pursuant to A.R.S. § 12-341.01 regardless of whether the rental agreement provides for such an award. Therefore, this decision is only applicable to those matters brought prior to the effective date of the statutory amendment.
. The term “costs” means such costs as are usually recovered in civil actions and does not include attorney’s fees. Coury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz. 515, 446 P.2d 458 (1968).