Dushoff v. Phoenix Company , 23 Ariz. App. 238 ( 1975 )

23 Ariz. App. 238 (1975) 532 P.2d 180

Jay DUSHOFF and Diane Dushoff, his wife, Appellants,
v.
The PHOENIX COMPANY, a limited partnership, Appellee, First National Bank of Arizona, Amicus Curiae, David H. Murdock dba David H. Murdock Development Company, Amicus Curiae.

No. 1 CA-CIV 2142.

Court of Appeals of Arizona, Division 1, Department A.

February 13, 1975. Review Denied March 18, 1975.

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.

STEVENS, Judge.

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.