IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

VEREIT REAL ESTATE, LP, et al., Plaintiffs/Appellees,

v.

FITNESS INTERNATIONAL, LLC, Defendant/Appellant.

No. 1 CA-CV 22-0402 

Appeal from the Superior Court in Maricopa County

No. CV2020-016464

The Honorable Timothy J. Thomason, Judge

AFFIRMED

COUNSEL

Titus Brueckner Spitler & Shelts PLC, Scottsdale

By Bradley S. Shelts, Casey O. Miller

Co-Counsel for Defendant/Appellant

Klehr Harrison Harvey Branzburg LLP, Philadelphia, Pennsylvania

By A. Grant Phelan

Co-Counsel for Defendant/Appellant

Ballard Spahr LLP, Phoenix

By Craig Solomon Ganz, Katherine E. Anderson Sanchez, Mitchell 

Turbenson

Counsel for Plaintiffs/Appellees

FILED 4-11-2023
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

2

OPINION

Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in 

which Judge Cynthia J. Bailey and Vice Chief Judge David B. Gass joined.

T H U M M A, Judge:

¶1 This appeal addresses whether defendant Fitness

International, LLC (Tenant) is excused from making rent and other 

payments to its landlords under long-term commercial leases when the 

State of Arizona restricted use of the properties because of the COVID-19 

pandemic. Because the applicable force majeure provisions and common 

law doctrines, notably the frustration of purpose doctrine, relied on by 

Tenant do not excuse those payment obligations, the grant of summary 

judgment for plaintiffs is affirmed. 

FACTS AND PROCEDURAL HISTORY

¶2 Tenant operates hundreds of fitness centers worldwide, three 

of which are at issue here. The properties Tenant leases in Avondale and 

Marana are owned by plaintiff VEREIT Real Estate, LP, and are governed 

by 15-year commercial leases entered in 2004 and 2011 respectively. The 

property Tenant leases in Glendale is owned by plaintiff Cole LA Glendale 

AZ, LLC, and was governed by a long-term commercial lease from 2009 to 

September 30, 2020. Plaintiffs VEREIT and Cole (collectively, Landlords) 

became assignees of the leases after they purchased the properties. 

¶3 The three commercial leases are comprehensive. They each 

are about 45 pages long, with nearly identical relevant terms, and are 

governed by Arizona law. Under the leases, in return for use of the 

premises, Tenant had to pay rent and other charges. The landlord-tenant 

relationship appears to have continued without significant strife before the 

COVID-19 pandemic.

¶4 On March 17, 2020, Tenant notified Landlords that it had 

closed its North American fitness centers because of COVID. That written 

notice stated Tenant viewed its payment obligations under the leases as 

excused, citing various theories, and asked Landlords to excuse those 

payments. The record does not contain any written response by Landlords. 

On March 20, 2020, Arizona Governor Doug Ducey ordered that all indoor 
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

3

gyms and fitness clubs be closed to the public because of COVID. That

closure continued through May 17, 2020, and after a brief suspension, from 

June 29, 2020 through August 26, 2020. After that time, occupancy was 

limited until early March 2021. Tenant did not make lease payments for

April, May, June and August 2020, totaling more than $900,000.

¶5 After making written payment demands, Landlords filed this 

action for payment. Tenant’s answer claimed many affirmative defenses, 

including that the force majeure provision in the Marana lease excused its 

payment obligations for that property, as well as frustration of purpose,

impracticability and impossibility. After some discovery, Landlords moved 

for summary judgment, arguing Tenant’s affirmative defenses did not 

apply. Along with opposing Landlords’ motion, Tenant cross-moved for 

partial summary judgment, arguing the force majeure provision of the 

Marana lease excused Tenant’s payment obligations for that property.

Tenant argued that “[it] is entitled to summary judgment as a matter of law 

under the Marana Lease and no additional facts can alter this outcome.”

¶6 After full briefing and oral argument, the superior court 

concluded that Tenant’s affirmative defenses were inapplicable, Landlords 

had shown no genuine dispute as to any material fact and Landlords were 

entitled to judgment as a matter of law. The court granted Landlords’ 

motion for summary judgment and denied Tenant’s partial cross-motion 

for summary judgment. After entry of final judgment, Ariz. R. Civ. P. 54(c) 

(2023),1 Tenant timely appealed. This court has appellate jurisdiction under

Article 6, Section 9, of the Arizona Constitution and Arizona Revised 

Statutes (A.R.S.) sections 12-120.21(A)(1) and -2101(A)(1).

DISCUSSION

¶7 This court reviews de novo the grant of summary judgment, 

“viewing the evidence and reasonable inferences in the light most favorable 

to the party opposing the motion,” Andrews v. Blake, 205 Ariz. 236, 240 ¶ 12 

(2003), to determine “whether any genuine issues of material fact exist,”

Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55 ¶ 8 (App. 2007). This court 

will affirm the grant of summary judgment if it is correct for any reason.

Hawkins v. State, 183 Ariz. 100, 103 (App. 1995) (citation omitted). The court 

reviews Tenant’s various arguments in turn, at times consolidating the 

arguments it makes. 

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

4

I. The Force Majeure Provisions Did Not Excuse Tenant’s Payment 

Obligations.

¶8 The Avondale and Glendale leases contain the following force 

majeure provisions: 

If either party is delayed or hindered in or 

prevented from the performance of any act 

required hereunder because of governmental 

delays, strikes, lockouts, inability to procure

labor or materials, failure of power, lack of 

availability of primary utility service, restrictive 

laws, riots, insurrection, war, acts of terrorism, 

fire, severe inclement weather such as snow or 

ice or other casualty or other reason of a similar 

or dissimilar nature beyond the reasonable 

control of the party delayed, financial inability 

excepted (any “Force Majeure Event”), 

performance of such act shall be excused for the 

period of the Force Majeure Event, provided, 

however, the party so delayed or prevented 

from performing shall diligently proceed to 

make good faith efforts to remedy the cause of 

delay and to resume performance. Delays or 

failures to perform resulting from lack of funds 

or which can be cured by the payment of money 

shall not be Force Majeure Events. Nothing in 

this Section shall excuse Tenant from the 

prompt payment of any rental or other charges 

required of Tenant hereunder.

¶9 The Marana lease contains a nearly identical provision, but 

does not include the highlighted sentence that is included in the Avondale

and Glendale leases. Tenant concedes that the force majeure provision in 

the Avondale and Glendale leases does not excuse its payment obligations.

Tenant argues, however, that the force majeure provision in the Marana 

lease did excuse its payment obligations for that property. No Arizona 

appellate decision addresses the effect of a force majeure provision, with 

four decisions only mentioning the phrase. See Russo v. Barger, 239 Ariz. 100, 

102 ¶ 6 (App. 2016) (mentioning a purported translation of a force majeure 

ruling by a Mexican court); Tech. Constr., Inc. v. City of Kingman, 229 Ariz. 

564, 567 ¶ 7 (App. 2012) (“’The Court further notes that this Agreement does 

not contain a force majeure clause.’”) (quoting superior court’s ruling);
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

5

Stuart v. City of Scottsdale, 1 CA-CV 18-0154, 2020 WL 7230239 at *1–2 ¶ 7 

(Ariz. App. Dec. 8, 2020) (mem. dec.) (quoting an amendment to a contract 

that included a force majeure provision); Austin Ranch, L.L.C. v. West 

Surprise Landowners Grp., L.L.C., 1 CA-CV 08-0837, 2010 WL 363830 at *6 

¶19–21 (Ariz. App. Feb 2, 2010) (mem. dec.) (finding arbitrator exceeded 

their authority by, among other things, rewriting an agreement to include 

a force majeure provision).

¶10 In general, a force majeure provision allows contracting 

parties to allocate the risk of unforeseeable events beyond their control. 

“Force majeure clauses in commercial contracts are designed to excuse 

parties from performance of a contract when an unforeseeable event 

beyond their control has frustrated the parties’ contractual purpose, made 

it impossible for one or both of the parties to perform or made it 

impracticable to do so.” Lisa C. Thompson, 11 ARIZ.LEGAL FORMS,BUS.ORG.

LLC & PART. § 14:17.50 (4th ed. 2022). “[F]orce majeure clauses may bar 

some common law defenses to performance so care must be taken in 

considering the use and language in a force majeure clause as it will 

control.” Id. A force majeure defense can only apply when a contract 

contains a force majeure provision; force majeure is not a common law 

defense applicable when a contract lacks a force majeure provision. See, e.g.,

Robert W. Emerson & Zachary R. Hunt, Franchisees, Consumers, and 

Employees: Choice and Arbitration, 13 Wm. & Mary Bus. L. Rev. 487, 559 & n. 

600 (2022) (“There is no right to force majeure protection in common law; 

such provisions are creations of contract and are thus considered on their 

own precise terms;” adding “[i]f no force majeure clause exists, either party 

might be able to invoke the common law doctrine of frustration.”) (citation 

omitted). Courts typically use general contract interpretation rules when 

applying force majeure provisions. See InterPetrol Bermuda Ltd. v. Kaiser 

Aluminum Int’l Corp., 719 F.2d 992, 998–99 (9th Cir. 1983). 

¶11 Under Arizona law, “the interpretation of a contract is a 

question of law, which this court reviews de novo.” Grosvenor Holdings, L.C. 

v. Figueroa, 222 Ariz. 588, 593 ¶ 9 (App. 2009). “A general principle of 

contract law is that when parties bind themselves by a lawful contract[,] the 

terms of which are clear and unambiguous, a court must give effect to the 

contract as written.” Grubb & Ellis Mgmt. Servs., Inc. v. 407417 B.C., L.L.C., 

213 Ariz. 83, 86 ¶ 12 (App. 2006) (citations omitted). These common law 

contract interpretation rules drive the analysis here.

¶12 The force majeure provision of the Marana lease states that 

“delays or failures to perform resulting from lack of funds or which can be 

cured by the payment of money shall not be Force Majeure Events.” 
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

6

Landlords argue that this sentence means the force majeure provision does 

not excuse Tenant’s missed payments because those obligations could be 

cured by the payment of money. Tenant argues that this sentence does not 

apply to such payments, because it “is simply stating what shall not be a 

Force Majeure Event under the Lease[] -- financial distress or something 

that can be cured by paying money.” Contrary to Tenant’s argument, 

however, the phrases “lack of funds” and “payment of money” modify

“[d]elays or failures.” Thus, under the provision, specified “[d]elays or 

failures” -- those “resulting from lack of funds or which can be cured by the 

payment of money” -- are not Force Majeure Events. 

¶13 Each party argues that the plain language of the provision 

provides the answer. “Force Majeure Events” is a defined term, and such 

an event must cause the delay, hindrance or prevention of the performance 

of an act otherwise required by the lease. The first sentence of the force 

majeure provision quoted above states that the “act” required by the lease 

must be “delayed or hindered in or prevented from” being performed 

“because of” a Force Majeure Event, not that the “act” required by the lease 

is a Force Majeure Event itself. For example, “inclement weather” might 

delay one party from performing an act required by the lease and, in that 

event, because the required act was “delayed . . . because of” a Force 

Majeure Event, the provision could excuse the performance of the required 

act. The delay, hinderance or prevention, however, is not a Force Majeure 

Event itself. Instead, a delay, hindrance or prevention is caused by (or the 

result or consequence of) the Force Majeure Event. Tenant has not shown 

why this court should depart from the plain meaning and amend the 

provision to provide otherwise. See Emps. Mut. Cas. Co. v. DGG & CAR, Inc., 

218 Ariz. 262, 267 ¶ 24 (2008) (“When the provisions of the contract are plain 

and unambiguous upon their face . . . the court will not pervert or do 

violence to the language used”) (citation omitted).

¶14 Taking a broader look, and recognizing that “Force Majeure 

Events” is a defined term, the provision generally provides that delays, 

hindrances and preventions of a required act “because of” Force Majeure 

Events can excuse performance of that required act. But the last sentence of 

the provision in the Marana lease (starting with “Delays or failures . . .”)

provides an exception to that general rule. As the superior court held, the 

sentence provides that Force Majeure Events do not excuse delays or failures 

that can be cured by the payment of money. Because the failure to make 

lease payments can be cured by the payment of money, it is not excused by 

the Force Majeure Event, here the restrictive laws that required the gyms to 

close. Thus, the court did not err in concluding the force majeure provision 

of the Marana lease did not excuse Tenant’s payments.
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

7

¶15 In addressing the “Nothing in this Section . . .” sentence that 

is not included in the Marana lease, the superior court concluded the lack

of that language did not mean “that lease should be construed differently 

than the Avondale and the Glendale leases.” Instead, the court noted the 

additional sentence in the other leases was a “belt and suspenders”

approach. Tenant argues the court erred in reaching that conclusion 

because Landlords “never took the position and never presented evidence 

that the ‘nothing in this Section’ provision was just ‘belt and suspenders.’”

In pressing this argument, Tenant misconstrues both Landlords’ arguments 

and the court’s ruling. 

¶16 Citing Landlords’ reply to support their motion for summary 

judgment, Tenant asserts that “Landlords did not argue that the force 

majeure provision alone did not excuse payment of rent under the Marana 

Lease.” But Landlords argued that the force majeure provision -- stating 

that “failures to perform . . . which can be cured by the payment of money”

are not Force Majeure Events -- meant that Tenant’s “failure to pay amounts 

owed under the Leases can be cured by the payment of money and, thus, 

the force majeure provisions do not apply.” The superior court agreed, 

stating that “the language that ‘failures to perform . . . which can be cured 

by the payment of money shall not be Force Majeure Events’ demonstrates 

an intention that payment of rent was not excused by any ‘restrictive laws,’” 

contrary to Tenant’s arguments. Thus, the court’s ruling responded to, and 

accounted for, the parties’ arguments.

¶17 The cases cited by Tenant to argue that the superior court’s 

ruling “was entirely improper” because it did not track the parties’ 

arguments do not apply. The unpublished decision in Bessler v. City of Tempe

granted a motion for reconsideration when both parties agreed that they 

had not argued a theory the court relied on. See CV-19-04610-PHX-MTL, 

2021 WL 4122247 at *3 (D. Ariz. Sept. 9, 2021) (mem. dec.). And the other 

case cited by Tenant in arguing error, construed a federal local rule that 

does not apply. See Motorola, Inc. v. J.B. Rodgers Mech. Contractors, 215 F.R.D. 

581, 583 (D. Ariz. 2003). Here, the superior court explained its reasoning 

and why it disagreed with Tenant’s argument. In doing so, the court was 

not improperly adopting an undisclosed theory. In raising the argument 

that the other two leases provide context to the third lease, Tenant has not 

shown the court erred or acted improperly in rejecting that argument. 

Tenant has thus shown no error, reversible or otherwise.

¶18 Tenant has not shown that the force majeure provision in the 

Marana lease allowed it to suspend payments. Tenant has not shown that 

it was “delayed or hindered in or prevented from” paying the required 
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

8

amounts under that lease. The act that Tenant seeks to be excused from is 

payment under that lease. Based on the plain language of the lease, 

payment would be excused only if Tenant could show that it was “delayed, 

hindered in or prevented from” performing that act. Tenant made no such 

showing. To the contrary, in responding to discovery, Tenant declared that 

it “has not claimed any financial inability to pay rent during the closure 

periods due to the government mandated closures.” Tenant also objected 

to producing any financial information, asserting such documents and 

information were irrelevant.

¶19 Finally, Tenant argues that the relevant performance is not the 

obligation to pay but, instead, is “[Tenant’s] right to operate the Premises.” 

Tenant contends that, because it was hindered in the performance of this

right, its obligations to make payments under the lease are excused. But 

under the lease terms, only the act delayed, hindered or prevented from 

being performed is excused. To conclude otherwise would impermissibly 

modify the lease by “add[ing] something to the contract which the parties 

have not put there.” Emps. Mut. Cas. Co., 218 Ariz. at 267 ¶ 24 (citation 

omitted). Tenant has shown no error in the court concluding the force 

majeure provision in the Marana lease did not excuse Tenant from its 

payment obligations. 

II. Frustration of Purpose Did Not Excuse Tenant’s Payment 

Obligations.

¶20 Apart from the force majeure provision, Tenant argues its 

payment obligations were suspended or terminated by the frustration of 

purpose doctrine. Generally, “frustration of purpose deals with ‘the 

problem that arises when a change in circumstances makes one party’s 

performance virtually worthless to the other.’” 7200 Scottsdale Rd. Gen. 

Partners v. Kuhn Farm Mach., Inc., 184 Ariz. 341, 345 (App. 1995) (quoting 

RESTATEMENT (SECOND) OF CONTRACTS (RESTATEMENT) § 265 (1981)). 

Frustration of purpose “is, in appropriate circumstances, a justification for 

nonperformance of a contract and is recognized in Arizona.” Mobile Home 

Ests., Inc. v. Levitt Mobile Home Sys., Inc., 118 Ariz. 219, 222 (1978). To 

establish frustration of performance, a party must show

First, “the purpose that is frustrated must have 

been a principal purpose of that party” and 

must have been so to the understanding of both 

parties. Second, “the frustration must be 

substantial . . .; [it] must be so severe that it is 

not to be regarded as within the risks assumed . 
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

9

. . under the contract.” Third, “the nonoccurrence of the frustrating event must have 

been a basic assumption. . . . .” Finally, relief will 

not be granted if it may be inferred from either 

the language of the contract or the 

circumstances that the risk of the frustrating 

occurrence, or the loss caused thereby, should 

properly be placed on the party seeking relief.

7200 Scottsdale Rd. Gen. Partners, 184 Ariz. at 348 (quoting and citing 

RESTATEMENT §§ 261 cmt. b & c and 265 cmt. a & b). To be “substantial,” the 

“value of the counter-performance to be rendered by the promisee must be 

totally or nearly totally destroyed.” Id. at 349 (citation omitted).

A. Tenant Waived Its Temporary Frustration of Purpose

Argument. 

¶21 Tenant argues that this court should adopt temporary 

frustration of purpose and apply it here. Although not yet recognized in 

Arizona, the RESTATEMENT provides that “frustration of purpose may be 

only temporary,” yielding a suspension (not termination) of contract 

obligations. See RESTATEMENT § 269 cmt. a. This case provides no reason for 

this court to decide whether to adopt temporary frustration of purpose. 

¶22 As an alternative basis for its ruling, the superior court stated 

that “[e]ven if [it] were to entertain [Tenant]’s invitation to adopt a 

‘temporary frustration’ rule, the obligation to pay rent would only be 

‘suspended’ while the frustration existed.” Because the alleged temporary 

frustration of purpose occurred in 2020, the court continued, “there has 

been ample time for [Tenant] to pay the payments it did not pay in 2020.” 

Tenant, however, had failed to make those payments. 

¶23 Although Tenant argues that the COVID-based restrictions

were a temporary frustration of purpose, it does not challenge in its 

opening brief the court’s conclusion that its rental obligations would only 

be “suspended” –- not discharged altogether -- while the temporary 

frustration of purpose existed. Thus, Tenant waived the issue. See Robert 

Schalkenbach Found. v. Lincoln Found., Inc., 208 Ariz. 176, 180 ¶ 17 (2004). In 

its reply, Tenant tries to raise the issue, arguing that “suspended” did not 

mean that “the rent obligation for the Closure Periods merely deferred to a 

later date.” By not raising this argument in its opening brief, however, it is 

waived. See Nelson v. Rice, 198 Ariz. 563, 567 ¶ 11 n.3 (App. 2000).
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

10

B. Complete Frustration of Purpose Did Not Excuse Tenant’s 

Payment Obligations.

¶24 At oral argument in this court, Tenant conceded that it was 

not seeking relief under RESTATEMENT § 265, which defines complete 

frustration of purpose. Even absent that concession, Tenant could not 

prevail on a complete frustration of purpose theory. Tenant has not shown 

that a four-month restriction imposed on 15-year commercial leases

constitutes such a substantial frustration of purpose that the resulting value 

of leasing the premises is “totally or nearly totally destroyed.” 7200 

Scottsdale Rd. Gen. Partners, 184 Ariz. at 349; see also 9795 Perry Highway 

Mgmt., LLC v. Bernard, 273 A.3d 1098, 1106–07 (Pa. Super. Ct. 2022) (78-day 

closure during a six-year lease was not a substantial frustration that would 

allow the frustration of purpose doctrine to excuse performance).

¶25 Both complete and temporary frustration of purpose also fail 

because “the language of the contract” allocated the risk to Tenant when 

restrictive laws limited performance. 7200 Scottsdale Rd. Gen. Partners, 184 

Ariz. at 348. Under the doctrine of frustration of purpose, performance is 

excused only if the risk of loss was not “placed on the party seeking relief.” 

Id. Both the Avondale and Glendale leases have explicit clauses stating that 

“[n]othing in this [force majeure provision] shall excuse Tenant from the 

prompt payment of any rental or other charges required of Tenant 

hereunder.” As explained above, the Marana lease requires Tenant to pay 

rent even during force majeure events. These clauses provide that Tenant 

bears the risk of loss and is still required to make lease payments during 

such events. See Lisa C. Thompson, 11 ARIZ. LEGAL FORMS, BUS. ORG. LLC &

PART. § 14:17.50 (4th ed. 2022). Because Tenant bears the risk of loss under 

the lease provisions, its performance cannot be excused under the doctrine 

of frustration of purpose. See 7200 Scottsdale Rd. Gen. Partners, 184 Ariz. at 

348.

III. Tenant Waived Any Failure of Consideration Argument.

¶26 In the superior court, Landlords argued they provided

sufficient consideration and Tenant did not dispute that argument. Tenant 

has thus waived any failure of consideration argument. See Odom v. Farmers 

Ins. Co. of Ariz., 216 Ariz. 530, 535 ¶ 18 (App. 2007). Even absent waiver, 

Tenant has not shown there was a failure of consideration when it received 

access to and used each of the properties for years before any COVIDrelated restrictions and after those restrictions were lifted. 
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

11

IV. Tenant Has Not Shown that Performance of Its Obligations Was 

Impracticable.

¶27 Tenant argues that the superior court erred in rejecting its 

impossibility and impracticability arguments. Arizona and the 

RESTATEMENT treat these concepts as the single defense of impracticality of 

performance. See 7200 Scottsdale Rd. Gen. Partners, 184 Ariz. at 345 n.2; 

RESTATEMENT § 261 cmt. d. Unlike frustration of purpose, which requires a 

showing that the counterparty’s performance has become worthless, 

impracticability requires a party to show a substantial impediment to their 

performance. 7200 Scottsdale Rd. Gen. Partners, 184 Ariz. at 345. The 

RESTATEMENT approach, adopted in Arizona, provides that “[w]here, after 

a contract is made, a party’s performance is made impracticable . . . his duty 

to render that performance is discharged, unless the language or the 

circumstances indicate the contrary.” See RESTATEMENT § 261; 7200 Scottsdale 

Rd. Gen. Partners, 184 Ariz. at 345. “Performance may be impracticable 

because extreme and unreasonable difficulty, expense, injury, or loss to one 

of the parties will be involved.” RESTATEMENT § 261 cmt. d. The 

RESTATEMENT recognizes temporary impracticability, see id. § 269, but that 

limited aspect of the doctrine has not yet been adopted in Arizona.

¶28 At oral argument in this court, Tenant conceded that it was 

not arguing complete impracticability under RESTATEMENT § 261. On the 

record presented, Tenant has not shown its payments were impracticable,

under either a complete or temporary impracticability theory. When the 

relevant duty is to pay an amount specified in the contract, the party 

seeking the doctrine’s protection must show the impracticality of making

that payment. 7200 Scottsdale Rd. Gen. Partners, 184 Ariz. at 345–46. As 

discussed above, Tenant has not shown that making the payment was 

impracticable. Tenant argues that performance was impracticable because 

the COVID restrictions caused an “excessive and unwarranted financial 

burden.” But, as discussed above, Tenant provided no evidence supporting 

that argument, objected to providing its financial information during 

discovery and argued such information was irrelevant. On this record, 

Tenant has shown no error in the superior court addressing 

impracticability. See id.

V. Tenant Has Not Shown a Breach of the Covenants and Warranties.

¶29 Tenant argues that rent was excused, claiming Landlords

committed the first material breaches of express covenants and warranties

in the leases. Section 2.2(b) of each lease states that “Landlord shall have 

good and insurable title . . . free and clear of all tenancies, covenants, 
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

12

conditions, restrictions, encumbrances . . . which might in any manner to 

any extent prevent or adversely affect the use of the Premises by Tenant.” 

Tenant, however, has shown no breach of these provisions. Although, as 

Tenant argues, the restrictive laws did affect Tenant’s use of the property, 

Tenant has not shown that such restriction resulted from a defect in 

Landlords’ title. Nor do Tenant’s arguments about other paragraphs in that 

section expand the language of Section 2.2(b) beyond Landlords’

requirement to have good and insurable title. And Tenant has not shown

Landlords did not continuously have good and insurable title in 

compliance with these provisions. 

¶30 Next Tenant argues that rent was excused based on 

Landlords’ failure to provide quiet enjoyment, violating the express terms 

of the lease and the common law. Section 22.1 of each lease states that

“Tenant shall quietly enjoy the Building for the Term without hindrance or 

interruption by Landlord or any other person or persons lawfully or 

equitably claiming by, through or under Landlord, subject to the terms of 

this Lease.” Tenants’ arguments fail because both the covenant in Section 

22.1 and the common law covenant require acts by Landlords or someone 

acting on behalf of Landlords that prevent the quiet enjoyment of the land.

See Thompson v. Harris, 9 Ariz. App. 341, 345 (1969) (“a covenant of quiet 

enjoyment . . . does not extend to acts of other tenants or third parties unless 

such acts are performed on behalf of the landlord or by one claiming 

paramount title”). Tenant has failed to show the COVID-related restrictions 

imposed by Arizona’s Governor were done by Landlords or someone 

acting on the Landlords’ behalf or claiming paramount title.

¶31 Finally, citing Section 1.9, entitled “Initial Uses” or “Primary 

Uses,” Tenant argues that Landlords breached the express guarantee that

“Tenant shall have the right throughout the Term to operate the Building, 

or any portion thereof, for uses permitted under this Lease.” The leases, 

however, document the rights and responsibilities of Landlords and Tenant 

about uses Landlords would allow for the properties. Although Section 1.9 

specifies those authorized uses, it does not guarantee that Tenant could use 

the properties for those purposes. For example, the leases provide that

Tenant must meet the licensing requirements to operate its business. If 

Tenant failed to do so and could not operate as a fitness center, it could not 

bring claims against Landlords because of that restriction. Additionally, as 

Landlords noted at oral argument in this court, Section 8.2 allows Tenant to 

“change the use of the building to any alternate legal use” not otherwise 

restricted. Thus, Tenant has not shown Landlords breached the permissible 

uses provisions of the leases.
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

13

VI. Tenant Has Shown No Error in the Superior Court’s Consideration 

of Their Affirmative Defenses. 

¶32 Tenant argues that Landlords did not show a lack of evidence 

supporting Tenant’s affirmative defenses necessary to prevail on a motion 

for summary judgment. See Nat’l Bank of Ariz. v. Thruston, 218 Ariz. 112, 119

¶28 (App. 2008). Although not required to disprove each affirmative 

defense, a party moving for summary judgment is “required to ‘point out,’ 

by referring to evidence in the record, that insufficient evidence existed to 

support the [non-moving party’s] affirmative defenses.” Id. at 119 ¶ 29. 

¶33 Tenant’s answer contains 11 pages of “affirmative defenses” 

spanning 62 paragraphs. Cf. Ariz. R. Civ. P. 8(d). In their motion for 

summary judgment, Landlords addressed force majeure, impracticability, 

impossibility, frustration of purpose, failure of consideration, 

condemnation and breach of covenants. Landlords then explained that 

Tenant’s other affirmative defenses were just “rephrasings of the abovediscussed affirmative defenses.” In doing so, Landlords attached Tenant’s 

interrogatory responses, explaining that the bases for the other affirmative 

defenses were the same ones raised and addressed in Landlords’ motion.

¶34 On appeal, Tenant has not shown that other affirmative 

defenses were not rephrasing the affirmative defenses Landlords addressed 

in seeking summary judgment. Tenant did not specify which affirmative 

defenses it alleges were not addressed when responding to the motion in 

superior court. Nor has Tenant done so on appeal. Thus, any such argument 

is waived. See In re Aubuchon, 233 Ariz. 62, 64–65 ¶ 6 (2013) (“We are not 

required to look for the proverbial ‘needle in the haystack.’ . . . [A]rguments 

not supported by adequate explanation [are waived].”) (citations omitted).

VII. Caselaw from Other Jurisdictions Is Not Binding.

¶35 The parties cite and provide supplemental citations to many 

recent conflicting, non-binding, unpublished trial court decisions from 

other jurisdictions interpreting similar contractual provisions under the 

local law in those jurisdictions.

2 The parties, however, have not shown how 

2 See, e.g., VEREIT Real Est., L.P. et al. v. Fitness Int’l, LLC, No. DC-20-18444

(14th Jud. Dist. Ct., Dallas Cnty., Tex., Aug. 8, 2022); Fitness Int’l, LLC v. 

VEREIT Real Est., L.P., No. 2020-027207-CA-01 (11th Jud. Cir. Ct., MiamiDade Cnty., Fla, June 8, 2022); ROIC Four Corner Square, LLC v. Fitness Int’l, 

LLC, No. 21-2-04531-8 (Wash. Super. Ct., Oct. 8, 2021); BAI Century LLC v. 
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

14

citation to these trial court decisions would be allowed in the issuing 

jurisdictions, meaning they have not shown how they are properly cited 

here. See Ariz. Sup. Ct. R. 111(d). Recognizing that the cases offer no 

consensus and, instead, show conflicting outcomes, this court interprets the 

leases here under Arizona law.

¶36 Landlords, however, cite two recent published appellate 

decisions addressing similar issues that track the analysis in this opinion. 

See Fitness Int’l, LLC v. Nat’l Retail Props., LP, --- P.3d --- 2023 WL 2132749 

(Wash. Ct. App. Feb. 21, 2023); SVAP III Poway Crossings, LLC v. Fitness Int’l, 

LLC, 303 Cal.Rptr.3d 863, 866, 87 Cal.App.5th 882 (Jan. 20, 2023). Although 

not binding, the analysis in these opinions is instructive, as Poway Crossings

shows.

¶37 In Poway Crossings, the California Court of Appeal affirmed 

summary judgment for a landlord against a tenant in a case involving 

similar facts and a similar lease. See 303 Cal.Rptr.3d 863, 866, 87 Cal.App.5th 

882, 885. In doing so, the court rejected the tenant’s arguments that its 

obligation to pay rent was excused due to the COVID-19 pandemic by, 

among other things, the landlord’s breach of the lease, a force majeure 

provision and the doctrines of impossibility, impracticability and 

frustration of purpose. Id. at 875. Poway Crossings, interpreting the same 

Fitness Int’l, LLC, No. 2021 L 1322 (Cir. Ct. Cook Cnty., Ill., Sept. 30, 2021);

Fitness Int’l LLC v. DDRM Hill Top Plaza L.P., 2021 U.S. Dist. LEXIS 202670 

at *8 (C.D. Cal., Oct. 20, 2021); STORE SPE LA Fitness 2013-7 v. Fitness Int’l, 

LLC, No. SACV 20-953 JVS (ADSx) (C.D. Cal., June 30, 2021); Capital v. 

Fitness Int’l, No. 20STCV47017 (Cal. Super. Ct., Los Angeles, Nov. 19, 2021);

Charlotte Props. v. Fitness Int’l, No. 20CHCV00645 (Cal. Super. Ct., Los 

Angeles, Jan. 12, 2022); Kb Salt Lake III, LLC v. Fitness Int’l, LLC, No. 

21CHCV00790 (Cal. Super. Ct., Los Angeles, Apr. 5, 2022); Kids from the 

Valley IX, LLC v. Fitness Int’l, LLC, No. 21CHCV00657 (Cal. Super. Ct., Los 

Angeles, Nov. 15, 2021); SVAP III Poway Crossings LLC v. LA Fitness Int’l 

LLC, No. 37-2020-00016039-CU-BC-CTL (Cal. Super. Ct., San Diego, Sept. 

16, 2021); Fitness Int’l, LLC v. 93 FLRPT, LLC, No. 2021-CA-3508 (Fla. 12th

Judicial Cir. Ct., Manatee, Mar. 31, 2022); Fitness Int’l, LLC v. VEREIT Real 

Estate, Inc., No. 21-CA-74 (Fla. 13th Judicial Circuit Court, Hillsborough,

Aug. 29, 2022). Landlords also provided the unpublished appellate 

decision, Fitness Int’l, LLC v. City Center Ventures, LLC, No. A22-1057 (Minn. 

Ct. App. 2023). Although a published appellate decision, Highlands

Broadway OPCO, LLC v. Barre Boss LLC, --- P.3d ---, 2023 WL 308999 (Col. 

App. Jan. 19, 2023), addresses pandemic-related issues in the context of a 

commercial lease containing different provisions.
VEREIT REAL ESTATE, et al. v. FITNESS INT'L

Opinion of the Court

15

language found in Section 1.9 in the leases in this case, held that “the 

reasonable interpretation of Section 1.9 is that [the landlord] merely agreed 

not to restrict Fitness from using the premises in any way permitted under 

the lease.” Id. at 871. The court reached that conclusion by also looking to 

section 8.2, which allowed the tenant to change use of the premises. Id.

¶38 Poway Crossings also held that a force majeure provision 

nearly identical to the Marana lease did not excuse payment of rent. See id.

at 871–72. The court explained that “while [they] agree with [the tenant]

that the closure orders are “restrictive laws,” [they] do not agree that these 

laws delayed, hindered, or prevented [the tenant] from performing under 

the contract.” Id. Poway Crossings also rejected the tenant’s affirmative 

defenses, explaining “[n]othing about the pandemic or resulting closure 

orders has made [the tenant’s] performance of its obligation to [the 

landlord] -- paying rent -- impossible.” Id. at 872. The court refused to adopt 

temporary frustration of purpose and found that a “temporary government 

closure of a fitness facility for a period of months when the premises have 

been leased for more than 19 years -- and the lease term spans more than 23 

years total -- does not amount to the kind of complete frustration required 

for the doctrine to apply.” Id. at 874; see also Fitness Int’l, LLC v. Nat’l Retail 

Props., LP, --- P.3d --- 2023 WL 2132749 (Wash. Ct. App. Feb. 21, 2023).

VIII. Landlords Are Awarded Their Reasonable Attorneys’ Fees and 

Costs Incurred on Appeal.

¶39 Landlords seek their attorneys’ fees and costs under Section 

22.7 of each lease. Because Landlords are the successful parties on appeal, 

they are awarded their reasonable attorneys’ fees and taxable costs 

contingent upon their compliance with ARCAP 21.

CONCLUSION

¶40 The judgment is affirmed.