Forcible Entry and Detainer Actions: Courts May Not Consider Tenant’s Hardship
December 08, 2016 —
Erica Stutman – Snell & Wilmer Real Estate Litigation BlogIf you own property and a tenant wrongfully refuses to vacate the premises (for example when the lease expires or after proper written notice of termination), you may have a quick and easy remedy to have the tenant removed. Arizona’s forcible entry and detainer (FED) statute allows a person to bring a speedy, summary action to obtain an order that the person must leave the property immediately. See A.R.S. § 12-1171 – 1183. To allow for quick resolution, the only question a court may consider in a FED action is who has the right of possession of the property. A.R.S. § 12-1177(A) (“On the trial of an action of forcible entry or forcible detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.”). Counterclaims and cross-claims are not permitted in a FED action, and must be addressed in a separate civil action between the parties. If factual questions bear on the right of possession, they will also need to be resolved in a regular civil action.
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Erica Stutman, Snell & Wilmer Ms. Stutman may be contacted at
estutman@swlaw.com
Damron Agreement Questioned in Colorado Casualty Insurance v Safety Control Company, et al.
February 10, 2012 —
CDJ STAFFSafety Control and EMC appealed the judgment in Colorado Casualty Insurance Company versus Safety Control Company, Inc., et al. (Ariz. App., 2012). The Superior Court in Maricopa County addressed “the validity and effect of a Damron agreement a contractor and its excess insurer entered into that assigned their rights to sue the primary insurer.” Judge Johnsen stated, “We hold the agreement is enforceable but remand for a determination of whether the stipulated judgment falls within the primary insurer’s policy.”
The Opinion provides some facts and procedural history regarding the claim. “The Arizona Department of Transportation (“ADOT”) hired DBA Construction Company (“DBA”) to perform a road-improvement project on the Loop 101 freeway. Safety Control Company, Inc. was one of DBA’s subcontractors. As required by the subcontract, Safety Control purchased from Employer’s Mutual Casualty Company (“EMC”) a certificate of insurance identifying DBA as an additional insured on a policy providing primary coverage for liability arising out of Safety Control’s work.”
A collision occurred on site, injuring Hugo Roman. Roman then sued ADT and DBA for damages. “Colorado Casualty tendered DBA’s defense to the subcontractors, including Safety Control. Safety Control and EMC rejected the tender. Roman eventually settled his claims against DBA and ADOT. DBA and ADOT stipulated with Roman for entry of judgment of $750,000; Roman received $75,000 from DBA (paid by Colorado Casualty) and $20,000 from ADOT, and agreed not to execute on the stipulated judgment. Finally, DBA, ADOT and Colorado Casualty assigned to Roman their rights against the subcontractors and other insurers.”
Colorado Casualty attempted to recover what “it had paid to defend DBA and ADOT and settle with Roman. However, Roman intervened, and argued that “Colorado Casualty had assigned its subrogation rights to him as part of the settlement agreement.” The suit was not dismissed, but the Superior Court allowed Roman to intervene. “Roman then filed a counterclaim against Colorado Casualty and a cross-claim against the subcontractors.”
All claims were settled against all of the defendants except Safety Control and EMC. “The superior court ruled on summary judgment that EMC breached a duty to defend DBA and that as a result, ‘DBA was entitled to settle with Roman without EMC’s consent as long as the settlement was not collusive or fraudulent.’ After more briefing, the court held the stipulated judgment was neither collusive nor procured by fraud and that EMC therefore was liable to Roman on the stipulated judgment and for his attorney’s fees. The court also held Safety Control breached its subcontract with DBA by failing to procure completed-operations insurance coverage and would be liable for damages to the extent that EMC did not satisfy what remained (after the other settlements) of the stipulated judgment and awards of attorney’s fees.” Safety Control and EMC appealed the judgment.
Four reasons were given for the decision of the ruling. First, “the disagreement between Roman and Colorado Casualty does not preclude them from pursuing their claims against EMC and Safety Control.” Second, “the settlement agreement is not otherwise invalid.” Third, “issues of fact remain about whether the judgment falls within the EMC policy.” Finally, “Safety Control breached the subcontract by failing to procure ‘Completed Operations’ coverage for DBA.”
In conclusion, the Superior Court affirmed in part, reversed in part, and remanded . “Although, as stated above, we have affirmed several rulings of the superior court, we reverse the judgment against EMC and remand for further proceedings consistent with this Opinion to determine whether the stipulated judgment was a liability that arose out of Safety Control’s operations. In addition, we affirm the superior court’s declaratory judgment against Safety Control but remand so that the court may clarify the circumstances under which Safety Control may be liable for damages and may conduct whatever further proceedings it deems appropriate to ascertain the amount of those damages. We decline all parties’ requests for attorney’s fees pursuant to A.R.S. § 12-341.01 without prejudice to a request for fees incurred in this appeal to be filed by the prevailing party on remand before the superior court.”
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Buffalo-Area Roof Collapses Threaten Lives, Businesses After Historic Snowfall
December 05, 2022 —
Thomas Leffler - AccuWeatherAfter a historical snowfall event in the Buffalo area this past week, residents weren’t just taking to the driveways and sidewalks to clear snow. In the Buffalo suburb of Orchard Park, New York (home to the NFL’s Buffalo Bills), the 80 inches of snow that accumulated was also cleared off local roofs in order to prevent a major danger to homes.
Snow as deep and heavy as the recent lake-effect snowstorm can cause roofs to collapse, threatening the lives of people who live inside. An unfortunate scenario befell Buffalo in November 2014, when a 6-foot snow event known as “Snowvember” led to emergency calls for numerous collapsed roofs around the region.
One Orchard Park business, Graffiti Grafix & Signs, had its roof collapse in 2014 and had about a third of the roof come down once again this past week, according to The Buffalo News. Orchard Park Police Chief Patrick Fitzgerald noted in an email that three commercial properties in Orchard Park, including Graffiti Grafix & Signs, suffered damage from roof collapse.
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Court Rules Planned Development of Banning Ranch May Proceed
June 10, 2015 —
Kristian B. Moriarty and Lawrence S. Zucker II – Haight Brown & Bonesteel, LLPIn Banning Ranch Conservancy v. City of Newport Beach (filed 5/20/2015, No. G049691), the California Court of Appeal, Fourth District, held the Environmental Impact Report prepared by the City of Newport Beach for the partial development of Banning Ranch complied with California environmental protection statutes and local ordinances.
Under the California Environmental Quality Act (“CEQA”), a city desiring to approve or carry out a project that may have significant effect on the environment must prepare an environmental impact report (“EIR”) designed to provide the public with detailed information about the effect which a proposed project will have on the environment. The California Coastal Act of 1976 provides for heightened protection of environmentally sensitive habitat areas (“ESHA”) defined as any “area in which plant or animal life or their habitats are either rare or especially valuable because of their special nature or role in an ecosystem and which could be easily disturbed or degraded by human activities and developments.”
In 2006, the City of Newport Beach adopted a General Plan for the physical development of the city. The plan specifically identifies Banning Ranch as having significant value as a wildlife habitat and open space resource for citizens. The general plan includes a primary goal of complete preservation of Banning Ranch as open space. To the extent the primary goal cannot be achieved, the plan identifies a secondary goal allowing limited development of Banning Ranch “to fund preservation of the majority of the property as open space.” The plan also requires the City to coordinate any development with the state and federal agencies.
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Kristian B. Moriarty, Haight Brown & Bonesteel LLP and
Lawrence S. Zucker II, Haight Brown & Bonesteel LLP
Mr. Moriarty may be contacted at kmoriarty@hbblaw.com; Mr. Zucker may be contacted at lzucker@hbblaw.com
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Where Parched California Is Finding New Water Sources
June 13, 2022 —
Pam McFarland - Engineering News-RecordAs drought-plagued western states watch their water sources literally dry up, California is digging deeper to tap the most basic source of all: groundwater.
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Pam McFarland, Engineering News-Record
Ms. McFarland may be contacted at mcfarlandp@enr.com
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Best Lawyers Honors 48 Lewis Brisbois Attorneys, Recognizes Four Partners as 'Lawyers of the Year'
August 30, 2021 —
Lewis BrisboisBest Lawyers has selected 48 Lewis Brisbois attorneys across 27 offices for inclusion in its list of 2022 Best Lawyers in America. It has also recognized four Lewis Brisbois partners as "Lawyers of the Year": Cleveland/Akron Partner John F. Hill (Bet-the-Company Litigation); San Diego Partner Marilyn R. Moriarty (Medical Malpractice Law - Defendants); Portland Managing Partner Eric J. Neiman (Medical Malpractice Law - Defendants); and Sacramento Partner Eric J. Stiff (Corporate Law).
Please join us in congratulating these four partners and the following attorneys on their Best Lawyers recognition.
Seattle Partner Randy J. Aliment: Commercial Litigation
Reno Managing Partner Jack G. Angaran: Insurance Law, Litigation - Construction, Litigation - Real Estate
Los Angeles Partner Brian G. Arnold: Litigation - Intellectual Property, Litigation - Patent
Los Angeles/Orange County Partner John L. Barber: Employment Law - Management, Litigation - Labor and Employment Read the court decision
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Client Alert: Catch Me If You Can – Giorgio Is No Gingerbread Man
November 26, 2014 — Steven M. Cvitanovic, Jesse M. Sullivan, & Colin T. Murphy - Haight Brown & Bonesteel LLP
In Giorgio v. Synergy Management Group, LLC (2014) Case No. B248752, a California Court of Appeal held in an opinion published on November 6, 2014, that the Los Angeles County trial court did not abuse its discretion in permitting service by publication on Defendant John Giorgio ("Giorgio") after numerous attempts to find his current address produced a single address in Los Angeles from which mailed service was returned. The Court ruled that publication in a Los Angeles newspaper was proper because Plaintiff had a reasonable belief that service by publication in that county was most likely to give actual notice to the party to be served.”
In this intentional tort action, Synergy Management Group, LLC ("Synergy") alleged in its Complaint that Giorgio converted assets of Synergy's assignor by submitting false expense reports which resulted in the misappropriation of the assignor's assets. Synergy personally served Giorgio with the original Complaint at a North Carolina airport and Giorgio failed to respond. Synergy subsequently filed a First Amended Complaint and attempted service via an address in the Netherlands. Again, Giorgio did not respond. Synergy then filed a request for entry of default against Giorgio which was entered that day.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys Steven M. Cvitanovic, Jesse M. Sullivan and Colin T. Murphy
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com; Mr. Sullivan may be contacted at jsullivan@hbblaw.com; and Mr. Murphy may be contacted at cmurphy@hbblaw.com
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East Coast Evaluates Damage After Fast-Moving 'Bomb Cyclone'
March 06, 2022 — Scott Van Voorhis - Engineering News-Record
Coastal areas in the northeast US are assessing damage from a fast-moving “bomb cyclone” that caused temperatures to plummet, triggered heavy flooding and high winds, and dumped 2 ft of snow in some New England areas.
Reprinted courtesy of Scott Van Voorhis, Engineering News-Record
ENR may be contacted at enr@enr.com
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