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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                    CRAIG DOMEIER, Plaintiff/Appellee,

                                        v.

                 JACKIE SAUNDERS, Defendant/Appellant.

                             No. 1 CA-CV 15-0441
                               FILED 5-3-2016


           Appeal from the Superior Court in Yavapai County
                       No. V1300CV201580064
          The Honorable Jeffrey G. Paupore, Judge Pro Tempore

   AFFIRMED IN PART, VACATED IN PART AND REMANDED


                                   COUNSEL

Guajardo & Johnson Associates, Phoenix
By T. Anthony Guajardo
Counsel for Defendant/Appellant




                       MEMORANDUM DECISION

Judge Maurice Portley delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge Patricia K. Norris joined.
                         DOMEIER v. SAUNDERS
                          Decision of the Court

P O R T L E Y, Judge:

¶1           Jackie Saunders (“Saunders”) appeals the forcible detainer
judgment entered against her. For the following reasons, we affirm the
judgment in part, vacate the award of attorney fees, modify the post-
judgment interest rate, and remand for entry of a corrected judgment.

                FACTS1 AND PROCEDURAL HISTORY

¶2             Craig Domeier (“Domeier”) leased a house to Saunders. The
lease term in the signed residential agreement was from January 20, 2014 to
January 31, 2015.

¶3            Saunders did not vacate the house once the lease expired.
Domeier then filed an eviction action against Saunders. A trial was held,
the court granted Domeier possession of the premises and, in the judgment,
also awarded Domeier rent, late charges, court costs and attorney fees
totaling $1,847.20. Saunders appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) section 12-2101(A)(1).

                               DISCUSSION

¶4           Saunders raises multiple arguments2 that can be synthesized
into two claims on appeal. First, she argues the trial court erred by
awarding a money judgment because Domeier’s complaint did not state
that he was seeking rent, late fees, attorney fees, or court costs as required
by Arizona Rules of Procedure for Eviction Actions (“Rules”) 5(c) and 13(c).
Second, she argues the court erred by evicting her because she did not
receive proper notice of the termination of the lease.

¶5            Residential eviction actions are governed by Article 4 of the
Arizona Residential Landlord and Tenant Act, see A.R.S. § 33-1361 to -1378,
and by the Arizona Rules of Procedure for Eviction Actions. We will not
disturb a trial court’s findings of fact unless they are clearly erroneous.
Town of Marana v. Pima Cty., 230 Ariz. 142, 152, ¶ 46, 281 P.3d 1010, 1020
(App. 2012). We, however, review the court’s conclusions of law de novo.
Id. And to the extent we have to interpret rules or statutes, we
independently follow the principles of statutory construction; we first look
to the language of the statute or rule and follow the language if it is clear

1 “We view the evidence and all reasonable inferences in the light most
favorable to sustaining the superior court’s ruling.” Town of Marana v. Pima
Cty., 230 Ariz. 142, 152, ¶ 46, 281 P.3d 1010, 1020 (App. 2012).
2 The opening brief contained six argument sections, but they are repetitive.



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                         DOMEIER v. SAUNDERS
                          Decision of the Court

and unequivocal. Patterson v. Mahoney, 219 Ariz. 453, 456, ¶ 9, 199 P.3d 708,
711 (App. 2008). We are also mindful that we will follow the procedural
requirements of a rule, which prescribes the method “by which the
substantive law is enforced or made effective.” Id. at ¶ 12 (quoting State v.
Birmingham, 96 Ariz. 109, 110, 392 P.2d 775, 776 (1964)).

A. Monetary Judgment

¶6              Saunders argues that Domeier was not entitled to accrued
rent, late fees, court costs, and attorney fees. She contends the “[c]omplaint
did not disclose [that] any money was due,” and, as a result, Domeier
“could not advance a monetary claim at trial” because he failed to comply
with the Rules.3

¶7             The Rules provide the procedural rules for litigants filing and
defending eviction actions, and for trial courts handling the cases, including
the method to allow the court to resolve possession, damages, fees and
costs. RPEA 1. For example, Rule 5 outlines what information should be in
the complaint, especially if monetary damages are sought. Then, Rule 13(c)
provides two types of remedies – possession of the premises and damages.
RPEA 13(c). Subsection (c)(1) provides for possession, while subsection
(c)(2) provides that a court may award damages to the person entitled to
possession for rent, reasonable late fees, attorney fees or other requested
fees, charges, or damages. RPEA 13(c)(2). Although subsection (c)(2)
provides that “[t]he court shall not award any amount for damages or
categories of relief not specifically stated in the complaint or counterclaim,”
it provides an exception for “additional rent, late charges, fees and other
amounts that have accrued since the filing of the complaint, if appropriate.”
RPEA 13(c)(2).

¶8            After the lease expired on January 31, 2015, and Saunders did
not voluntarily leave the premises, Domeier filed his eviction action on
March 4, and attached the lease. He, however, did not specifically request
any rent, late charges, court costs, or attorney fees. The court, after the
March 18 hearing, returned possession to Domeier, and gave Saunders until
March 24 to vacate the premises. And, based on Domeier’s request at trial
for accrued rent at the rate of $21 per day, the court entered a judgment



3 Domeier did not file an answering brief. Although we could regard his
failure as a confession of error, in our discretion, we decline to do so. See
Thompson v. Thompson, 217 Ariz. 524, 526 n.1, ¶ 6, 176 P.3d 722, 724 n.1 (App.
2008) (citation omitted).

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                          DOMEIER v. SAUNDERS
                           Decision of the Court

awarding him $504.00 for rent, $25 for late charges, and attorney fees and
court costs.

¶9             Rule 13(c)(2) allows the trial court to award “additional rent,
late charges, fees and other amounts that have accrued since the filing of
the complaint, if appropriate.” RPEA 13(c)(2). Rule 13(c)(2)(H) provides
that the court can award court costs “as required by A.R.S. § 12-341.” RPEA
13(c)(2)(H). Additionally, Rule 13(f) provides that the court can award
attorney fees to the prevailing party if “fees are provided for by statute or
in a written contract.” RPEA 13(f).

¶10           Here, although Domeier’s complaint did not ask for
additional rent or late charges, Rule 13(c)(2) allowed the court to award the
rent and late charges that had accrued since the filing of the complaint to
Domeier based on his trial testimony. Consequently, we find no error for
the rent and late fees in the judgment.

¶11            Saunders contends that Domeier was not entitled to court
costs because he did not seek those costs in his complaint. However, Rule
13(c)(2)(H) allows the court to award fees as required by A.R.S. § 12-341.
And that statute provides that “[t]he successful party to a civil action shall
recover from his adversary all costs expended or incurred therein.” A.R.S.
§ 12-341. Court costs, as a result, do not need to be listed in a complaint to
be awarded to the prevailing party; those costs can be awarded to
whichever party prevails. Id. Because Domeier was the prevailing party,
he was entitled to his court costs even though he did not seek his costs in
the complaint. Accordingly, the court did not err by awarding the court
costs in the judgment.

¶12           Saunders also contends that Domeier was not entitled to
attorney fees because he did not seek them in the complaint. We agree.

¶13            Rule 5(c) provides that if a party is seeking monetary
damages, including attorney fees, the complaint must include a request for
fees, and must also include an “amount of attorney fees, if permitted by law
or contract, that would be due . . . in the event of a default by the defendant.”
RPEA 5(c)(7). Rule 13(c)(2) reiterates the need to request fees in the
complaint. The subsection, while providing that the court may award “rent
or any reasonable late fees, attorney fees or other requested fees,”
specifically provides the court “shall not award any amount for damages
or categories of relief not specifically stated in the complaint or
counterclaim.” RPEA 13(c)(2). And unlike an unstated claim for additional



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                         DOMEIER v. SAUNDERS
                          Decision of the Court

rent and late charges, the rule does not make any exception for attorney
fees.

¶14           Although Rule 13(f) specifically provides that “[r]easonable
attorney fees shall be awarded to the prevailing party if the court determines
that such fees are provided for by statute or in a written contract,” RPEA
13(f) (emphasis added), the rules clearly provide that the court cannot
award attorney fees unless, as stated in subsection (c)(2), the landlord
requested those fees in the complaint. RPEA 13(c)(2). Consequently,
despite the attorney-fees provision in the lease, Domeier is not entitled to
those fees because he did not seek them in his complaint. Accordingly, the
court erred by granting Domeier attorney fees, and we vacate the portion
of the judgment awarding attorney fees of $892.20.

¶15            We note, however, that the trial court awarded Domeier
interest on the judgment amount at the rate of ten percent per annum from
the date of judgment until paid in full. The rate of interest on a judgment
is governed by A.R.S. § 44-1201(B), which provides that the interest “shall
be at the lesser of ten per cent per annum or at a rate per annum that is equal
to one per cent plus the prime rate as published by the board of governors
of the federal reserve system in statistical release H.15” or successor
publications “on the date that the judgment is entered.” A.R.S. § 44-1201(B);
Metzler v. BCI Coca-Cola Bottling Co. of Los Angeles, Inc., 235 Ariz. 141, 143,
¶ 1, 329 P.3d 1043, 1045 (2014) (noting that the interest rate under subsection
(B) is 4.25%). Because the statutory interest rate at the time of judgment was
4.25%,4 we vacate the interest provision and remand this case so that the
court can correct the interest rate from the date of the judgment, as well as
remove the attorney fees award.

B. Failure to Receive Timely Notice

¶16            Saunders also claims Domeier failed to give her timely notice
of the termination of the lease because she was a “month-to-month” tenant
entitled to a thirty-day notice under A.R.S. § 33-1375(B). We disagree.

¶17           A tenant who remains in possession of the property “without
the landlord’s consent after expiration of the term of the rental agreement,”
can be sued for possession of the premises. A.R.S. § 33-1375(C). However,
if “the landlord consents in writing to the tenant’s continued occupancy,”

4The judgment was entered on March 24, 2015. At the time, the prime rate
was 3.25%. See Bd. of Governors of the Fed. Reserve Sys., H.15 Selected
Interest Rates, (March 23, 2015).

                                      5
                         DOMEIER v. SAUNDERS
                          Decision of the Court

the tenant becomes a month-to-month tenant, A.R.S. § 33-1375(C) (citing
A.R.S. § 33-1314(D)), and the tenancy can only be terminated after receiving
a thirty-day written notice, A.R.S. § 33-1375(B).

¶18            Here, the lease stated that the term expired on January 31,
2015, and Saunders “agree[d] to vacate the premises at the end date of th[e]
Lease Agreement.” Saunders could only become a month-to-month tenant
if Domeier provided written consent for her to stay on the premises. She
did not present any evidence that Domeier had provided written consent
for her to stay past January 31, and the court did not find that Domeier
agreed to allow her to stay. Therefore, because Saunders was not a month-
to-month tenant under A.R.S. § 33-1375(C) after January 31, 2015, she was
not entitled to any specific written notice terminating the tenancy.

¶19           Moreover, A.R.S. § 33-1311 requires both parties to act in good
faith during the landlord-tenant relationship. “Good faith” is statutorily
defined as “honesty in fact in the conduct or transaction concerned.” A.R.S.
§ 33-1310(5). Here, Domeier provided Saunders notice that he was not
going to renew the lease on January 29, 2015, by posting the notice at the
residence and by certified mail. The certified mail was returned as refused,
but, during the hearing, Saunders’ attorney admitted that Saunders had
received the notice of nonrenewal in an email sent on January 27.

¶20          Saunders then periodically mailed several rental payments to
Domeier, which he repeatedly returned to her. Although she argues that
those “payments” converted her status into a month-to-month tenant,
Domeier did not accept any of the checks and the court concluded Saunders
had never become a month-to-month tenant. The court did not err.5

¶21          Saunders requests attorney fees pursuant to A.R.S. § 12-
349(A)(1) and § 12-341.01. In our discretion, we deny the request.




5Saunders also argues that Domeier was required to mediate her continued
stay in the residence. Although the lease had a provision that they
“agree[d] to mediate any dispute or claim arising between them out of this
[a]greement,”once the lease expired, Saunders was not entitled to mediate
the continuation of her stay on the premises.

                                     6
                        DOMEIER v. SAUNDERS
                         Decision of the Court

                             CONCLUSION

¶22            Based on the foregoing, we affirm the judgment in part, but
vacate the award of $892.20 for attorney fees, and remand this case to allow
the trial court to enter a corrected judgment without the attorney fees and
to modify the post-judgment interest as required by A.R.S. § 44-1201(B)
from the date of judgment until paid in full.




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