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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 3-10-2020
PURCELL, et al. v. WILLIAMSON, et al.

Decision of the Court

2

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).
PURCELL, et al. v. WILLIAMSON, et al.

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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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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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¶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 nonwaiver 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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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.
PURCELL, et al. v. WILLIAMSON, et al.

Decision of the Court

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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.