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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSEPH WALTERS, Plaintiff/Appellant,

v.

SHAKARI D’ANNIBALE, Defendant/Appellee.

No. 1 CA-CV 21-0520

Appeal from the Superior Court in Maricopa County

No. CV2021-004894

The Honorable David W. Garbarino, Judge

AFFIRMED

COUNSEL

Zazueta Law PLLC, Scottsdale

By Fabian Zazueta, Garrett Respondek

Counsel for Plaintiff/Appellant

Shakari D’Annibale, Phoenix

Defendant/Appellee

FILED 6-14-2022
WALTERS v. D’ANNIBALE

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

B R O W N, Judge:

¶1 Plaintiff Joseph Walters (“Landlord”) appeals the superior 

court’s judgment finding defendant Shakari D’Annibale (“Tenant”) not 

guilty of forcible detainer and awarding her attorneys’ fees and costs. 

Because Landlord has shown no error, we affirm. 

BACKGROUND

¶2 Landlord owns a house located on Camelback Mountain in 

Phoenix. The house is fully furnished with Landlord’s personal property

and from 2015-2018 it was used for short-term rentals. In July 2019, Tenant 

signed a lease agreement (“Lease”) to rent the house for 24 months 

beginning August 1, 2019 and paid a $16,500 security deposit. Tenant’s 

monthly payments were set at $11,000 but the Lease did not include a due 

date for rent. The Lease prohibited Tenant from keeping pets on the 

premises and specified that she would occupy the house with her two 

children. The Lease also contained an anti-waiver provision, which 

provided:

No waiver by Landlord of any provision herein shall be 

enforceable against Landlord unless in writing signed by 

Landlord, nor shall it be deemed a waiver of any other 

provision herein or of any subsequent breach by Tenant of the 

same or any other provision. Landlord’s consent to or 

approval of any act shall not constitute a continuing consent 

to or approval of any subsequent act by Tenant. 

¶3 On February 23, 2021, Landlord sent Tenant a Notice of Intent 

to Terminate Lease for Material Breach of Rental Agreement (“February 

Notice”). He alleged that Tenant had unauthorized pets, unauthorized 

occupants, and failed to maintain the premises. Tenant had ten days to cure 

the violations or the lease would automatically terminate and Landlord 

could file an eviction action. See A.R.S. § 33-1368(A). 
WALTERS v. D’ANNIBALE

Decision of the Court

3

¶4 Landlord accepted Tenant’s rent payment for March 2021. On 

March 26, 2021, Landlord filed a complaint in superior court seeking to evict 

Tenant. Landlord alleged in part that Tenant breached the Lease by having 

cats on the premises, allowing unauthorized occupants (four children 

instead of two) to live in the house, and failing to maintain the premises.

Landlord then accepted Tenant’s rent payment for April 2021. 

¶5 After a bench trial, the court found Tenant not guilty of 

forcible detainer. The court held that the Lease’s anti-waiver provision is 

invalid because it conflicts with the Arizona Residential Landlord and 

Tenant Act (“ARLTA”). See A.R.S. §§ 33-1371(C) (providing a waiver 

defense for tenants if a landlord accepts rent with knowledge of a past 

breach), -1315(A)(1) (“A rental agreement shall not provide that the tenant 

. . . [a]grees to waive or to forego rights or remedies under [ARLTA].”). The 

court therefore determined that because Tenant made all rental payments 

through April 2021, under § 33-1371(C), Landlord waived his right to 

terminate the Lease for any breach occurring before his most recent 

acceptance of rent. The court further explained, however, that assuming

§ 33-1371(C) did not apply, the only issues before the court were those 

outlined in the February Notice: unauthorized animals, unauthorized 

occupants, and failure to maintain the premises. 

¶6 Noting the conflicting evidence about whether Tenant failed 

to cure the unauthorized pets issue, the court found that Landlord did not 

meet his burden to prove that it was more likely than not that Tenant failed 

to cure the issue. The court also found that Tenant lived in the house with 

her four children, and that “but for [Landlord’s] acceptance of rent, the 

occupancy issue would constitute grounds to terminate the Lease.” The 

court explained that there was insufficient evidence to support Landlord’s 

property damage claim, with the exception of any damage caused by the 

unauthorized pets, which could be addressed through Tenant’s security 

deposit. Thus, the court concluded that eviction for the alleged property 

damages was not the proper remedy. 

¶7 Tenant requested more than $34,000 in attorneys’ fees and 

costs pursuant to the Lease, which provided that the prevailing party in any 

dispute between the parties would be awarded fees and costs. The court 

found the amount requested was unreasonable and awarded $17,000

instead. Landlord timely appealed, and we have jurisdiction under A.R.S. 

§ 12-2101(A)(1). 
WALTERS v. D’ANNIBALE

Decision of the Court

4

DISCUSSION

¶8 Landlord argues the court erred in finding that the antiwaiver provision was unenforceable, and that Tenant was not guilty of 

forcible detainer. He acknowledges that Tenant has long since vacated the 

Property, but argues his appeal is not moot because if he prevails on appeal, 

Tenant would no longer be the prevailing party, which would affect the 

superior court’s fee award. Tenant agrees that the appeal is not moot for 

that same reason. We agree. See Fisher v. Maricopa County Stadium Dist., 185 

Ariz. 116, 119 (App. 1995).

¶9 We review questions of law de novo, but “defer to the 

superior court’s findings of fact unless clearly erroneous.” Fleming v. 

Tanner, 248 Ariz. 63, 68, ¶ 13 (App. 2019); see also Ariz. R. Civ. P. 52(a)(6).

¶10 Landlord argues the superior court erred in finding the antiwaiver provision was unenforceable under ARLTA. However, that 

provision plainly requires that Tenant forego her rights and remedies under 

§ 33-1371(C). Thus, the court properly concluded that the provision is 

unenforceable under ARLTA. See A.R.S. § 33-1315(B) (“A provision that is 

prohibited by” § 33-1315(A) “and that is included in a rental agreement is 

unenforceable.”). 

¶11 Landlord interprets the superior court’s ruling to mean that if 

a landlord accepts rent, thus waiving any breaches, he may not evict a 

tenant for a subsequent breach (occurring after the latest rental payment). 

We do not read the ruling that way. But even assuming the court’s 

preclusion of the anti-waiver provision was overly broad, it does not 

change our analysis because each of the three issues contained in the 

February Notice were waived by Landlord’s acceptance of rent in March 

and April.

¶12 Nonetheless, Landlord argues he did not waive his right to 

evict Tenant for the unauthorized occupants and pets. He contends Tenant 

continued to maintain unauthorized occupants and pets at the house after 

he accepted the April 2021 rental payment. He claims there was a “strong 

inference” that Tenant continued to have cats on the premises after the 

April 2021 rent payment because the smell of cat urine was still present. 

Landlord also points to the superior court’s finding Tenant did not dispute 

that she continued to allow her four children to reside at the house, despite 

the Lease’s occupancy limit of two children. 

¶13 Landlord, however, fails to acknowledge that the only issues

before the superior court were those outlined in the February Notice, and
WALTERS v. D’ANNIBALE

Decision of the Court

5

whether Tenant cured those breaches. The superior court properly limited 

its review to the issues contained in that notice, which alleged that Tenant 

had unauthorized pets, unauthorized occupants, and failed to maintain the 

premises. When Landlord accepted the April rent payment, Landlord 

waived the issues raised in the February Notice. To the extent there were 

new breaches of the Lease, nothing in the record shows that Landlord gave 

Tenant notice of any alleged breaches occurring after he accepted the April 

2021 rental payment, or that Tenant was given an opportunity to cure them. 

See § 33-1368(A) (providing that “if there is a material noncompliance by 

the tenant with the rental agreement . . . the landlord may deliver a written 

notice to the tenant”). Thus, Landlord’s reliance on conduct that occurred 

after he accepted the April 2021 rent payment is unavailing. 

¶14 We also reject Landlord’s contention that the court erred in 

finding that he did not meet his evidentiary burden regarding the pet issue. 

The superior court “is in the best position to weigh evidence and assess 

witness credibility.” Demetrius L. v. Joshlynn F., 239 Ariz. 1, 3, ¶ 9 (2016). As 

such, we defer to the court’s findings of fact if supported by reasonable 

evidence and inferences. Id. 

¶15 The court heard conflicting testimony about whether Tenant 

had cats on the property after the February Notice. For example, both 

Landlord and his property manager testified that a black and white cat was 

seen on the driveway of the house at an inspection in April 2021, and that 

they could smell cat urine inside the house during that inspection. Tenant 

offered testimony that the black and white cat did not belong to her, nor 

was she taking care of it on the premises. She also testified that many of 

Landlord’s items were still in the house during the lease, and that cat 

products found in the house did not belong to her. 

¶16 The superior court noted that while the evidence established 

that Tenant had cats on the premises on occasion, “[t]he evidence conflicted 

as to whether [Tenant] cured the issue within ten days of the February []

Notice.” Finding no credibility issues with any of the testifying witnesses, 

the court determined that Landlord failed to show “that [it] was more likely 

than not that [Tenant] did not cure the issue.” Because the court’s findings 

of fact regarding the unauthorized pets are supported by conflicting but 

reasonable evidence, Landlord has failed to show such findings were 

clearly erroneous. 
WALTERS v. D’ANNIBALE

Decision of the Court

6

CONCLUSION

¶17 We affirm the superior court’s ruling and award of attorneys’ 

fees to Tenant. Both parties seek an award of attorneys’ fees. Because 

Landlord has not prevailed, we deny his request. We also deny Tenant’s 

request because she is no longer represented by counsel. As the successful 

party on appeal, Tenant is entitled to recover her taxable costs subject to 

compliance with ARCAP 21.