Summary
In Dushoff, the tenant claimed that the vacant premises were only shown to prospective tenants "as a last resort" after all other available property had been shown.
Summary of this case from Wingate v. GinOpinion
No. 1 CA-CIV 2142.
February 13, 1975. Review Denied March 18, 1975.
On motion for rehearing of 22 Ariz. App. 445, 528 P.2d 637, the Court of Appeals, Stevens, J., held that a landowner is not under an absolute duty to mitigate damages but rather must make only a reasonable effort to rent property at a fair rental thereby leaving intact the tenant's contractual obligations under the lease subject to the landlord's failure to make reasonable efforts to mitigate.
Motion for rehearing denied.
Dushoff Sacks, by Seymour Sacks, Leroy L. Miller and Robert V. Kerrick, Phoenix, for appellants.
Bonn Anderson, by Jeffrey D. Bonn, Phoenix, for appellee.
Streich, Lang, Weeks, Cardon French, by Dan M. Durrant, Phoenix, for the First Nat. Bank of Arizona.
Gust, Rosenfeld, Divelbess Henderson, by Richard A. Segal, Phoenix, for David H. Murdock dba David H. Murdock Development Co.
This Court rendered its opinion on 26 November 1974. The opinion is reported in 22 Ariz. App. 445, 528 P.2d 637.
The appellee filed a timely motion for rehearing. The First National Bank of Arizona filed its motion in support of the motion for rehearing and for leave to file an amicus curiae brief which was tendered with the motion. David H. Murdock dba David H. Murdock Development Company filed a like motion and tendered a brief. The appellants filed their response.
It is ordered granting the motion for leave to appear as amicus curiae and the briefs are accepted. In this connection the Court desires to point out that the First National Bank of Arizona's motion and brief do not limit themselves to the record before this Court and urge a number of matters which are outside of the record. This may not be done. City of Tempe v. Prudential Insurance Company of America, 109 Ariz. 429, 510 P.2d 745 (1973).
The amicus curiae have miscontrued the opinion. They urge that the opinion places on the landlord "an absolute duty * * * to mitigate damages." Our holding ( 22 Ariz. App. at 449, 528 P.2d at 641) only requires that the landlord "make reasonable efforts to rent it (the property) at a fair rental." This requirement leaves intact the tenant's contractual obligations under the lease, subject to the effect of the landlord's failure to make reasonable efforts, if such be the fact.
The opinion, as pointed out in the appellants' response, reverses the summary judgment for reasons other than the factual question as to whether the landlord did use reasonable efforts to mitigate.
It is further ordered reaffirming our opinion and denying the motion for rehearing.
OGG, P.J., and J. DONOFRIO, J., concur.