Sedona-Oak Creek Airport Auth. Inc. v. Dakota Territory Tours AAC

SEDONA-OAK CREEK AIRPORT AUTHORITY INC., Plaintiff/Appellee, v. DAKOTA TERRITORY TOURS ACC, Defendant/Appellant.

No. 1 CA-CV 20-0158

ARIZONA COURT OF APPEALS DIVISION ONE

January 12, 2021

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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

Appeal from the Superior Court in Yavapai County

No. V1300CV201980119

The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Henze Cook Murphy PLLC, Phoenix

By Kiersten A. Murphy

Co-Counsel for Plaintiff/Appellee

Law Office of Tony S. Cullum PC, Flagstaff

By Tony S. Cullum

Co-Counsel for Plaintiff/Appellee

Ahwatukee Legal Office PC, Phoenix

By David L. Abney

Counsel for Defendant/Appellant

MEMORANDUM DECISION

Presiding Judge James B. Morse Jr. delivered the decision of the Court, in which Judge Maria Elena Cruz and Judge Paul J. McMurdie joined.

MORSE, Judge:

¶1 Dakota Territory Tours AAC ("Dakota") appeals from an order granting summary judgment and finding it guilty of forcible detainer. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND¹

¶2 Dakota conducts a helicopter and fixed-wing air tour business out of the Sedona Airport under a lease agreement with Sedona-Oak Creek Airport Authority Inc. ("SOCAA"), which manages the airport's operations. In 2012, Dakota entered into a 24-month commercial activity lease with SOCAA for property on the Sedona Airport ("the Property"). The parties later extended the lease to expire in April 2017.

¶3 In 2014, Dakota initiated a civil lawsuit against SOCAA over a lease dispute. The parties reached a settlement agreement ("Settlement Agreement") in April 2017, before the lease expired. In pertinent part, the Settlement Agreement provided the following:

[SOCAA] has agreed, and hereby confirms that it has agreed to continue leasing the existing property pursuant to the existing lease on a month-to-month basis until an RFP issues. In the event Dakota is the successful bidder, then a new lease will issue to Dakota and its use of the premises will not be interrupted. In the event Dakota is not the successful bidder, Dakota must vacate the premises no later than thirty (30) days after receipt of the (30) day notice . . . which [SOCAA] may provide at any time on or after the date of the award . . . advising of the date of the award and that Dakota must vacatethe premises within thirty (30) days. No other notice of termination shall be required from [SOCAA].

¶4 SOCAA issued a request for proposals ("RFP") in May 2017. The RFP provided that "[t]he 'best responsible proponent' shall be that proponent which [SOCAA] and Yavapai County may determine," and "[t]he Yavapai County Board of Supervisors will consider the proposals on or before June, 2017," and that "any proposal will be subject to Federal Aviation Administration review and approval prior to commencement of any lease/agreement." SOCAA received proposals from both Dakota and Guidance Air Service ("Guidance"). On June 26, 2017, SOCAA notified Guidance it had been selected. SOCAA did not consult either the Yavapai County Board of Supervisors ("Board") or the Federal Aviation Administration ("FAA") before deciding the best proponent. SOCAA notified Dakota that its proposal was not chosen and it had thirty days to vacate the Property.

¶5 Instead of vacating the premises, Dakota initiated another civil lawsuit ("the 2017 lawsuit") in Yavapai County Superior Court seeking a temporary restraining order precluding SOCAA from evicting Dakota, arguing that SOCAA breached the RFP because the Board and FAA had not participated in selecting the Guidance proposal. The superior court initially granted a temporary restraining order and held a three-day evidentiary hearing on Dakota's claims. At the end of the hearing, the court invited SOCCA "to file a motion with the Court to lift the injunction."

¶6 SOCAA then filed a motion to dissolve the injunction. The court held argument, found that SOCAA established that the Board was given the requisite opportunity to participate and the FAA was not required to approve, and dissolved the injunction in November 2017.

¶7 SOCAA immediately sent Dakota a new termination notice demanding Dakota vacate the Property. But Dakota appealed, and the matter stayed until this court affirmed the dissolution of the preliminary injunction in April 2019. See Dakota v. Sedona-Oak Creek Airport Auth. Inc., 1 CA-CV 17-0767, 2019 WL 1499853 (Ariz. App. Apr. 4, 2019) (mem. decision).

¶8 After this court issued its decision, SOCAA notified Dakota it would bring a forcible entry and detainer ("FED") action if Dakota did not vacate the Property. Dakota failed to vacate the Property, and SOCAA filed a FED complaint. The superior court stayed the FED action until this court issued a mandate for the 2017 lawsuit. We issued an amended mandate in October 2019.

¶9 Dakota requested a jury trial in the FED action. The superior court initially granted Dakota's request for a jury trial in a preliminary ruling before the oral argument. SOCAA then moved for summary judgment, which Dakota opposed. The court granted summary judgment in favor of SOCAA and found Dakota guilty of forcible detainer under A.R.S. §§ 12-1171(3) and -1173(1). The court denied Dakota's request for a jury trial, noting that after considering the motions and oral arguments, it determined there was "no material question of fact related to the right to possession":

Dakota's right to remain on the property extinguished when SOCAA completed the RFP process by presenting the proposals to the County Board of Supervisors. Importantly, Judge Napper lifted the injunction in the civil cases finding that SOCAA had complied with the RFP. The tenancy clearly terminated after SOCAA issued the RFP and selected Guidance as the winner of the RFP. Following the appeal and issuance of the mandate, written notice to vacate was sent to Dakota and Dakota failed to vacate the premises. The Settlement Agreement provided for 30 days' notice to vacate the property following the issuance of the RFP if the winner was not Dakota. SOCAA has provided notice in excess of that time. Dakota stated at oral argument that it did not dispute notice. The court finds based on the facts that Dakota has retained possession after its tenancy has terminated and after it received written demand of possession by SOCAA.

¶10 A signed judgment was filed on March 6, 2020. The judgment found Dakota guilty of forcible detainer of the Property and awarded SOCAA attorney fees and costs. Dakota timely appealed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

DISCUSSION

¶11 Dakota claims the superior court erred by failing to grant its request for a jury trial, overlooking genuine issues of material fact, and finding that SOCAA has the right of actual possession of the Property.

I. Denial of Jury Trial.

¶12 Dakota claims the superior court violated its statutory and constitutional right to a jury trial when it entered summary judgment. "Interpreting rules, statutes, and constitutional provisions raises questionsof law, which we review de novo." State v. Hansen, 215 Ariz. 287, 289, ¶ 6 (2007).

A. Right to Jury Trial Under A.R.S. § 12-1176.

¶13 Dakota argues that A.R.S. § 12-1176 grants parties to FED actions "a substantive, absolute right to a jury trial" that, if timely exercised, no trial court can deny.

¶14 A.R.S. § 12-1176 provides:

(A) If a jury trial is requested by the plaintiff, the court shall grant the request. If the proceeding is in the superior court, the jury shall consist of eight persons, and if the proceeding is in the justice court, the jury shall consist of six persons. The trial date shall be no more than five judicial days after the aggrieved party files the complaint.

(B) If the plaintiff does not request a jury, the defendant may do so on appearing and the request shall be granted.

(C) The action shall be docketed and tried as other civil actions.

¶15 Dakota argues that the repeated use of "shall" in A.R.S. § 12-1176(B) highlights the substantive nature of the right to a jury trial in FED actions. However, the language in A.R.S. § 12-1176(B) that a request for a jury trial "shall be granted" is not dispositive. See Orme Sch. v. Reeves, 166 Ariz. 301, 308-09 (1990) (finding that when there are no material issues of fact, summary judgment does not offend the Arizona Constitution's guarantee that "the right to jury trial 'shall remain inviolate'") (quoting Ariz. Const. art. 2, § 23); Goldman v. Kautz, 111 Ariz. 431, 432 (1975) (interpreting statutory language that "[a] trial by jury shall be had if demanded" as being procedural, rather than substantive).²

¶16 Rule 11(d) of the Arizona Rules of Procedure for Eviction Actions ("Eviction Rules") provides that "[i]f no factual issues exist for the jury to determine, the matter shall proceed to a trial by the judge alone regarding any legal issues or may [be] disposed of by motion or in accordance with these rules, as appropriate." Dakota argues this rule conflicts with the right to a jury trial provided in A.R.S. § 12-1176 and, therefore, the rule must fail. We disagree. If the statute provides a procedural, as opposed to a substantive, right to a jury trial, then the rule prevails. See Duff v. Lee, --- Ariz. ---, 476 P.3d 315, 318, ¶ 12 (2020) (stating that if there is a conflict "between a procedural statute and a rule, the rule prevails") (quoting Seisinger v. Siebel, 220 Ariz. 85, 88-89, ¶ 8 (2009)); see also Ariz. Const. Art. 6, § 5(5) (conferring power on the supreme court "to make rules relative to all procedural matters in any court"). Thus, we "first must determine whether an irreconcilable conflict exists between the statute and rule," and only "then determine whether the statute is procedural or substantive." Duff, --- Ariz. ---, 476 P.3d at 318, ¶ 12.

¶17 There is no irreconcilable conflict between A.R.S. § 12-1176 and Eviction Rule 11(d). See id. at ¶ 14 ("[W]e avoid interpretations that unnecessarily...