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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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


                          RALPH PURCELL, et al.,
                            Plaintiffs/Appellees,

                                        v.

                          REX WILLIAMSON, et al.,
                            Defendants/Appellants.

                             No. 1 CA-CV 19-0486
                               FILED 3-10-2020


          Appeal from the Superior Court in Maricopa County
                         No. CV2019-002449
         The Honorable David W. Garbarino, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

The Law Offices of Mary T. Hone, PLLC, Scottsdale
By Mary T. Hone
Counsel for Plaintiffs/Appellees

The Law Office of Mark A. Tucker, PC, Mesa
By Mark A. Tucker
Counsel for Defendants/Appellants
                 PURCELL, et al. v. WILLIAMSON, et al.
                       Decision of the Court



                      MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.1


J O H N S E N, Judge:

¶1            Tenants Rex and Karen Williamson appeal the superior
court's judgment in favor of landlords Ralph and Gail Purcell in an eviction
action. For the following reasons, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           The Purcells and the Williamsons entered into a residential
lease agreement ("Lease") for a term of December 15, 2018 to November 30,
2019, with options to extend the Lease for two additional years.2 The Lease
stated that the "Tenant shall not make any alterations, changes or
improvements to the Premises without Landlord's prior written consent."

¶3            The Williamsons took possession of the property ("Property")
on December 15, 2018. Then, without the Purcells' written consent, the
Williamsons removed an interior wall, ceiling fans and carpeting from the
house on the Property. After the Purcells discovered the changes and
warned the Williamsons they were to make no further changes without
their written consent, the Williamsons offered the Purcells a check for
$13,600 bearing the memo, "Jan, Feb, March, April 2019." According to Ms.



1      Judge Johnsen was a sitting member of this court when the matter
was assigned to this panel of the court. She retired effective February 28,
2020. In accordance with the authority granted by Article 6, Section 3, of
the Arizona Constitution and pursuant to A.R.S. § 12-145, the Chief Justice
of the Arizona Supreme Court has designated Judge Johnsen as a judge pro
tempore in the Court of Appeals, Division One, for the purpose of
participating in the resolution of cases assigned to this panel during her
term in office.

2       "When reviewing issues decided following a bench trial, we view the
facts in the light most favorable to upholding the [superior] court's ruling."
Bennett v. Baxter Grp., Inc., 223 Ariz. 414, 417, ¶ 2 (App. 2010).


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                 PURCELL, et al. v. WILLIAMSON, et al.
                       Decision of the Court

Williamson, she offered the check as prepayment for four months' rent. The
Purcells deposited the check on January 2, 2019.

¶4             On January 10, without the Purcells' consent, the Williamsons
had an electrician install a junction box, switches and receptacles in the
house. The next day, the Williamsons requested the Purcells repair the
outside front lights, remove water-remediation equipment and repair water
damage.

¶5           A week later, the Purcells terminated the Lease and
demanded that the Williamsons vacate immediately. After the Williamsons
refused to move out, the Purcells brought a special-detainer action under
Arizona Revised Statutes ("A.R.S.") section 33-1377 (2020) to evict the
Williamsons and collect unpaid rent and other damages.3 The Williamsons
filed a counterclaim that alleged the Purcells acted in bad faith and
unlawfully retaliated against them for requesting repairs.

¶6            The superior court denied the Williamsons' motion to dismiss
the complaint. After a bench trial, the superior court then found that
although the Williamsons materially breached the Lease when they
removed the wall, fans and carpets without the Purcells' prior consent, the
Purcells waived their right to terminate the Lease for that breach when they
accepted the rent check on January 2. The court further found, however,
that the Williamsons materially breached the Lease again after January 2
when they had the electrical work done without the Purcells' prior consent,
and that the Purcells did not waive their right to evict for that breach by
having earlier accepted the rent check. The court rejected the Williamsons'
counterclaims and found the Purcells were entitled to possession of the
Property. A final judgment provided a net-damages calculation for
damages against the Williamsons and in favor of the Purcells (after
accounting for the prepaid rent) and also awarded the Purcells their
attorney's fees and costs. See Ariz. R. Civ. P. 54(c).

¶7           The Williamsons timely appealed. We have jurisdiction
pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§
12-120.21(A)(1) (2020) and -2101(A)(1) (2020).

                              DISCUSSION

¶8           We will affirm the superior court's factual findings if they are
supported by substantial evidence and not clearly erroneous, but we review

3      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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                  PURCELL, et al. v. WILLIAMSON, et al.
                        Decision of the Court

legal questions de novo. Bennett v. Baxter Grp., Inc., 223 Ariz. 414, 417, 419,
¶¶ 8, 16 (App. 2010). Whether a breach of a lease was material is a question
of fact. See Maleki v. Desert Palms Prof'l Props., L.L.C., 222 Ariz. 327, 333, ¶
27 (App. 2009).

A.     Purported Mootness.

¶9             The Purcells argue the Williamsons' appeal is moot because
they have vacated the Property and any favorable decision for them would
not put them back in possession. Although "Arizona courts are not
constitutionally constrained to consider only 'cases' or 'controversies,' we
typically decline to consider moot or abstract questions as a matter of
judicial restraint." Kondaur Capital Corp. v. Pinal County, 235 Ariz. 189, 192-
93, ¶ 8 (App. 2014). "A case is moot when it seeks to determine an abstract
question which does not arise upon existing facts or rights." In re MH 2008-
000028, 221 Ariz. 277, 281, ¶ 13 (App. 2009) (citation omitted).

¶10            Regardless whether the dispute under the original Lease
(which has now expired, given the passage of time) is moot, the superior
court awarded the Purcells attorney's fees and costs pursuant to A.R.S. § 12-
341.01 (2020), the Lease, and Arizona Rule of Procedure for Eviction Actions
13(f), all of which permit a fee award only to a prevailing or successful
party. Because a favorable decision on the merits for the Williamsons
therefore could affect the underlying fee award, we decline to dismiss their
appeal as moot. Cf., e.g., Fisher v. Maricopa County Stadium Dist., 185 Ariz.
116, 119 (App. 1995) (court will decide merits of case if they affect a fee
award; also, mootness is "solely a discretionary policy").

B.     Erroneous Reference to Forcible-Detainer Statute.

¶11             The Williamsons argue the superior court erred by treating
the suit as a forcible-detainer action under A.R.S. §§ 12-1171 to -1183 (2020),
rather than a special-detainer action under the Arizona Residential
Landlord and Tenant Act ("ARLTA") pursuant to A.R.S. §§ 33-1301 to -1381
(2020). The Williamsons also contend the court "ignored key portions" of
the ARLTA in its ruling.

¶12            The first sentence of the judgment, entered in a form lodged
by counsel for the Purcells, states that the action arose from "Plaintiffs'
Complaint for special detainer pursuant to A.R.S. § 12-1173.01(A)(2)." The
statutory citation is a mistake; the cited statute allows a forcible-detainer
action if the property at issue "has been sold through a trustee's sale under
a deed of trust," a scenario inapplicable here.



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                  PURCELL, et al. v. WILLIAMSON, et al.
                        Decision of the Court

¶13             The Williamsons did not object to this aspect of the form of
judgment before the superior court entered it. Although both parties agree
this single, isolated citation was incorrect, it was a harmless error that in no
way affected the substance of the judgment. See In re Isler, 233 Ariz. 534,
539, ¶ 18 (2014) (harmless error if immaterial to result). The superior court
clearly treated this suit as a special-detainer action under A.R.S. §§ 33-1377
and -1368(A)(2) (2020) (authorizing special-detainer action if tenant is
committing "imminent or actual serious property damage"). Further,
contrary to the Williamsons' contention, the court fully considered and
ruled on their waiver defense under A.R.S. § 33-1371 (2020), as well as their
unlawful-retaliation counterclaim under A.R.S. § 33-1381(A)(3), both of
which fall under the ARLTA. Accordingly, we reject the Williamsons'
argument.

C.     The Williamsons' Waiver Defense.

¶14           The Williamsons argue the superior court erred by
"[i]gnoring" their contention that the Purcells waived their right to evict
them by accepting rent on January 2 without first obtaining a written non-
waiver agreement pursuant to § 33-1371.

¶15           Section 33-1371(C) provides that "acceptance of rent, or any
portion of rent, with knowledge of a default by the tenant . . . constitutes a
waiver of the right to terminate the rental agreement for that breach." A
landlord may preserve his or her right to terminate a lease for that breach,
however, by obtaining a contemporaneous written non-waiver agreement
from the tenant. See A.R.S. § 33-1371(A).

¶16           Here, the superior court did not ignore the Williamsons'
waiver defense; to the contrary, it ruled partially in favor of the Williamsons
when it found that although they materially breached the Lease by
removing the wall, fans and carpet without consent, the Purcells waived
their right to terminate for that breach by accepting the rent check on
January 2 with knowledge of the alterations.

¶17            Nevertheless, the Purcells' acceptance of the rent check on
January 2 did not preclude them from moving to evict the Williamsons for
their January 10 breach. The Williamsons do not contend the Purcells knew
when they accepted the check that the Williamsons were going to breach
the Lease again by having the electrical work done. See A.R.S. § 33-1371(C)
(acceptance of rent with knowledge of a breach only constitutes waiver "for
that breach" (emphasis added)). The Lease also made clear that no waiver of
any provision "shall . . . be deemed a waiver . . . of any subsequent breach



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                  PURCELL, et al. v. WILLIAMSON, et al.
                        Decision of the Court

by Tenant of the same or any other provision" and that the "Landlord's
consent to or approval of any act shall not constitute a continuing consent
to or approval of any subsequent act by Tenant."

¶18           The Williamsons further argue, however, that the court erred
by finding that the electrical alterations they made constituted a material
breach sufficient to justify termination. Addressing this contention, first,
although the Purcells' complaint did not explicitly refer to the January 10
electrical work, this did not preclude the court from considering it as a
ground to terminate the Lease. The complaint alleged the Williamsons
"were making significant alternations to the Property which Plaintiffs had
never authorized, including but not limited to, destroying a load-bearing wall,
removing and destroying newly installed ceiling fans and removing and
destroying expensive carpet." (Emphasis added.) Both parties presented
evidence at trial regarding the electrical work, the Purcells argued in closing
that the electrical work by itself justified terminating the Lease, and the
Williamsons had the opportunity to respond to that argument.

¶19           Second, substantial evidence supports the court's factual
finding that the electrical work was a material breach, rather than a "trivial"
one. See Maleki, 222 Ariz. at 333, ¶ 27. The evidence shows that without the
Purcells' consent, on January 10, the Williamsons had an electrician install
a junction box, switches and receptacles on the Property costing $624 and
involving the installation of multiple pieces of equipment and connecting
wiring within the house on the Property. The Williamsons have shown no
error.




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                 PURCELL, et al. v. WILLIAMSON, et al.
                       Decision of the Court

                              CONCLUSION

¶20           For the foregoing reasons, we affirm the superior court's
judgment in favor of the Purcells. Because they are the prevailing party, we
award the Purcells their costs and reasonable attorney's fees on appeal as
provided under the Lease, contingent on their compliance with Arizona
Rule of Civil Appellate Procedure 21.




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




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