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Docket Number

No. 1 CA-CIV 6392.

Attorney(S)

Norton, Burke, Berry French, P.C. by Ronald L. Junck, Phoenix, for plaintiff-appellant. Friedlander Friedlander by Susan O. Friedlander, J. Jeff Richardson, Phoenix, for defendants-appellees.

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Morga v. Friedlander, No. 1 CA-CIV 6392 (Ariz. Ct. App. Apr. 19, 1984) — Opinion Summary

Factual and Procedural Background

In February 1981, William E. Morga filed a complaint against Harry P. Friedlander and Susan O. Friedlander seeking contribution and contractual damages arising from a lease dated April 10, 1980. Morga alleged that Friedlander, purportedly acting on behalf of the community, failed to pay his share under the lease and breached an oral agreement concerning the lease. The Friedlanders answered and filed a verified counterclaim alleging tortious interference, conversion, and breach of contract. After a reply and discovery, both sides moved for summary judgment; the trial court denied Morga's motion and granted the Friedlanders' motion. Judgment (incorporating Rule 54(b) findings) was entered in favor of the Friedlanders and this appeal followed.

Legal Issues Presented

Whether the trial court erred by granting summary judgment in favor of the appellees (the Friedlanders) and against the appellant (Morga).
Whether Morga's actions constituted an ouster of Friedlander from the co-tenancy such that Friedlander is precluded from recovering rent contribution or contractual damages.
Whether mere occupancy by one co-tenant constitutes an ouster, or whether specific acts (and their quality) are required to establish ouster in the context of liability for rent.
Whether, if ouster is found, equitable doctrines (including unclean hands) and contract principles preclude an ousted co-tenant from obtaining contribution or contractual recovery.

Arguments of the Parties

Appellant's Arguments (Morga)

Morga asserted entitlement to recover Friedlander's share of the rent from February 1981 to the end of the lease under theories of contribution and contract.
Morga denied that he ousted Friedlander; he contended mere occupancy by one co-tenant does not constitute ouster and relied on authority (e.g., Stoltz v. Maloney) to support that proposition.
He asserted that any actions he took (e.g., changing locks) did not amount to total exclusion because Friedlander could have entered during working hours and because he left the premises open on January 10, 1981 for retrieval of belongings.
Morga argued that even if an ouster was found, he should nonetheless be entitled to contribution or contractual recovery.

Appellees' Arguments (Friedlanders)

The Friedlanders contended that Morga ousted Friedlander from the co-tenancy, and that such an ouster precludes Morga from recovering Friedlander's share of the rent.
They argued that Morga's acts (changing locks with a letter indicating exclusion, removal of Friedlander's name from the office front, and interference with Friedlander's right to lease) demonstrated an intent to exclude and constituted ouster.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Stoltz v. Maloney, 129 Ariz. 264, 630 P.2d 560 (App. 1981)	Authority cited for the proposition that mere occupancy by one cotenant does not alone constitute ouster.	The court noted Morga cited this case but found the issue here turned on specific acts beyond mere occupancy.
Spiller v. Mackereth, 334 So.2d 859 (Ala. 1976)	Explains two distinct meanings of "ouster": (1) for adverse possession (requiring claim of absolute ownership and denial of cotenancy) and (2) for liability for rent (requiring refusal to allow other cotenants use and enjoyment).	The court relied on Spiller to distinguish adverse possession ouster from ouster relevant to rent liability and to justify a lesser showing for rent cases.
Northcutt v. McPherson, 81 N.M. 743, 473 P.2d 357 (1970)	Defines ouster as requiring "some express, open and unequivocal denial of the right to possession" by a cotenant.	The court cited this definition to explain the type of conduct that can constitute ouster outside adverse possession claims.
Young v. Young, 37 Md. App. 211, 376 A.2d 1151 (1977)	Defines ouster as a notorious and unequivocal act by which one cotenant deprives another of equal possession and enjoyment.	The court used this formulation to support its view of the nature of ouster in rent-liability contexts and to support equitable bar to recovery by an ousted cotenant.
Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d 1 (1946)	States that ouster must be proved by acts of an adverse character.	Cited as additional authority for the requirement that acts demonstrating adverseness are necessary for ouster findings.
Foshee v. Foshee, 278 Ala. 205, 177 So.2d 99 (1965)	Adverse possession context (grouped with other adverse-possession cases).	Cited as an example of adverse-possession ouster cases that are less relevant to rent-liability ouster issues presented here.
Tarver v. Tarver, 258 Ala. 683, 65 So.2d 148 (1953)	Adverse possession case (group context).	Listed among adverse possession authorities that the court considered not particularly relevant to the instant rent-liability analysis.
Dimmick v. Dimmick, 58 Cal.2d 417, 374 P.2d 824, 24 Cal.Rptr. 856 (1962)	Adverse possession context (group context).	Included among adverse-possession cases distinguished from the present question about rent liability.
Redfearn v. Kuhia, 53 Haw. 378, 494 P.2d 562 (1972)	Adverse possession case (group context).	Mentioned as a case in the adverse possession line that is not particularly relevant to this rent-liability ouster dispute.
Quates v. Griffin, 239 So.2d 803 (Miss. 1970)	Adverse possession context (group context).	Cited in the court's survey of adverse-possession authorities contrasted with rent-liability ouster.
Heggen v. Marentette, 144 N.W.2d 218 (N.D. 1966)	Adverse possession context (group context).	Included among the authorities illustrating adverse-possession ouster principles distinguished from the present case.
Jackson v. Low Cost Auto Parts, Inc., 25 Ariz. App. 515, 544 P.2d 1116 (1976)	Recognizes that a co-owner may lease the common property to the extent of his interest without consent of other co-owners, conferring shared possession to the lessee for the lease term.	The court cited Jackson to support the proposition that interference with a cotenant's right to lease his interest can be an act constituting ouster.
Johnston v. DeLay, 63 Nev. 1, 158 P.2d 547 (1945)	Authority on the effect of a co-owner's lease of his interest conferring shared possession to a lessee.	Quoted within the Jackson discussion as supporting the principle that a co-tenant may lease his interest without other co-tenants' consent to that extent.
Brown v. Brown, 58 Ariz. 333, 119 P.2d 938 (1941)	Establishes that contribution is an equitable doctrine.	The court invoked Brown to frame contribution as equitable and to justify denying contribution to a party who had ousted a co-tenant on equitable grounds.
Green v. Higgins, 217 Kan. 217, 535 P.2d 446 (1975)	Discussed in relation to the unclean hands doctrine (equitable defense).	Used generally to support the court's equitable conclusion that it would not be appropriate to require an ousted cotenant to pay rent to the occupying cotenant; the court referenced Young v. Young and Green v. Higgins in that context.
MacArthur v. Rostek, 483 P.2d 1351 (Colo.App. 1971)	Relates to contract/lease law: termination of lease can relieve tenant of rent obligations.	The court cited MacArthur by way of comparison to support the view that removal of the consideration (use and enjoyment) relieved Friedlander of rental obligations under the contractual claim.
Bender v. Bender, 50 Md. App. 174, 436 A.2d 518 (1981)	Discussed regarding potential setoff issues for rent paid by one cotenant (consultative citation in a court note).	The court expressly stated it offered no opinion on whether Morga would be entitled to a setoff against a counterclaim; it cited Bender as general authority on setoff issues.
Connor v. Cal-AZ Properties, 137 Ariz. 53, 668 P.2d 896 (App. 1983)	Authority cited on appellate attorney fees and frivolous appeals.	The court cited Connor in denying the Friedlanders' request for attorney's fees because this appeal was not frivolous.

Court's Reasoning and Analysis

The court began with the undisputed factual sequence: Friedlander and Morga signed a two-year lease (April 10, 1980) and occupied the office while practicing separately; Friedlander moved out on January 5, 1981 and paid rent through January 1981 but paid no further rent; Morga thereafter paid the full rent and undertook several acts affecting Friedlander's interest (changed locks on January 7, 1981, removed Friedlander's name from the office glass front, and communicated a refusal to allow Friedlander to obligate him to accept tenants).

The court identified the legal focal point as the definition and effect of "ouster" in cotenancy cases. It relied on Spiller v. Mackereth to distinguish two distinct uses of "ouster": the adverse-possession context (requiring a claim of absolute ownership and denial of cotenancy) and the rent-liability context (in which a lesser showing—refusal to permit use and enjoyment—can suffice).

The court also cited definitions from Northcutt and Young emphasizing that ouster (in non-adverse-possession settings) requires an express, open, and unequivocal denial of the right to possession or a notorious and unequivocal act depriving a cotenant of equal possession and enjoyment.

Applying these principles to the undisputed facts, the court concluded that, although mere occupancy alone is not ouster, the combination of (1) changing the locks accompanied by a letter indicating that Friedlander no longer had access, (2) removing Friedlander's name from the office glass front, and (3) interfering with Friedlander's right to lease his interest (as recognized in Jackson v. Low Cost Auto Parts) demonstrated a claim by Morga of more than his due as a co-tenant and an intent to exclude Friedlander. The court therefore found that these acts, taken together, constituted ouster.

Having found ouster, the court addressed the remedial consequences. Because contribution is equitable (Brown v. Brown) and it would be inequitable to require the ousted co-tenant to pay rent to the occupying cotenant (invoking equitable principles including the unclean hands concept referenced with Young v. Young and Green v. Higgins), Morga was not entitled to contribution. As to the contractual claim, the court reasoned that the contract's consideration—use and enjoyment of the office—had been removed by Morga's conduct; thus the contract was breached by Morga's ouster and Friedlander was relieved of his rental obligations with respect to Morga (with MacArthur v. Rostek cited by way of comparison).

The court explicitly declined to decide issues relating to the Friedlanders' counterclaim for lost rents beyond noting it expressed no opinion whether Morga might be entitled to a setoff for rents he paid (citing Bender v. Bender for further discussion).

Finally, the court considered the Friedlanders' request for appellate attorney's fees under Rule 25 and A.R.S. § 12-2106 and denied the request because the appeal was not frivolous (citing Connor v. Cal-AZ Properties).

Holding and Implications

Holding: The Court of Appeals affirmed the trial court's grant of summary judgment in favor of the appellees. The court concluded that Morga's combination of acts constituted an ouster of Friedlander and, as a result, Morga was not entitled to recover Friedlander's share of rent either by contribution or contractual claim. The Friedlanders' request for appellate attorney's fees was denied.

Implications: The direct effect is that the appellees' summary judgment in the trial court is upheld and Morga's claims for contribution and contractual damages were denied on the ground of ouster and equitable principles. The court did not purport to announce or overrule broad new precedent beyond applying established definitions and distinctions regarding ouster in cotenancy law; it also expressly declined to resolve certain setoff questions related to the counterclaim.

This summary is based exclusively on the text of the provided opinion and does not add or infer facts beyond those contained in that opinion.

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William E. MORGA, Plaintiff-Appellant, v. Harry P. FRIEDLANDER and Susan O. Friedlander, his wife, Defendants-Appellees.

OPINION

GRANT, Judge.

In this appeal, we must decide whether the trial court erred in granting summary judgment in favor of appellees, Harry P. Friedlander (Friedlander) and Susan O. Friedlander, his wife, and against appellant, William E. Morga (Morga). We affirm.

FACTS

On February 27, 1981, Morga filed a complaint against the Friedlanders seeking contribution and contractual damages with respect to a lease dated April 10, 1980. Morga alleged that Friedlander, acting on behalf of the community, failed to pay his share under the lease in question and that Friedlander also breached an oral agreement relating to the lease. The Friedlanders filed an answer as well as a verified counterclaim in which they alleged tortious interference, conversion, and breach of contract. After a reply was filed to the verified counterclaim and discovery taken, both sides moved for summary judgment with respect to the complaint. Apparently the parties agreed that the case would be decided on cross motions for summary judgment.

The undisputed facts before the trial court established the following sequence of events. Friedlander and Morga as lessees signed a lease agreement dated April 10, 1980 with Steve Wallace as lessor. This lease related to the rental of law office space with the lease term for twenty-four months. Friedlander and Morga entered into an oral agreement with each other with respect to space and rental payment. They then occupied the leased space, but practiced law separately.

On January 5, 1981, Friedlander and those practicing with him moved out of the office in question. Friedlander had paid his share of the rent through and including the end of January, 1981. Subsequently, however, Friedlander did not make any additional rental payments. In order to avoid a default under the lease, Morga started paying the entire monthly rent.

On January 7, 1981, Morga changed the locks on the door to the office. At about the same time, Morga caused Friedlander's name to be removed from the glass front of the office.

After oral argument the trial court denied Morga's motion for summary judgment and granted the Friedlanders' motion for summary judgment. Judgment was entered and this appeal followed.

The judgment in the trial court did not dispose of the counterclaim. However, findings in accordance with rule 54(b), Arizona Rules of Civil Procedure, were incorporated into the judgment from which this appeal was taken.

LAW

Morga contends that he is entitled to recover Friedlander's share of the rent from February, 1981 until the end of the lease term under either a contribution or contractual theory. The Friedlanders disagree contending that Morga ousted Friedlander and that such ouster precludes Morga's recovery. Morga, however, insists that he did not oust Friedlander and that even if he did, he is still entitled to recover since mere occupancy by one of the co-tenants does not constitute an ouster. Stoltz v. Maloney, 129 Ariz. 264, 630 P.2d 560 (App. 1981).

The proper definition for the term "ouster" in the context of a co-tenancy is crucial here. The Alabama Supreme Court in Spiller v. Mackereth, 334 So.2d 859 (Ala. 1976), discussed the multiple meanings of "ouster," when it stated:

Ouster is a conclusory word which is used loosely in cotenancy cases to describe two distinct fact situations. The two fact situations are (1) the beginning of the running of the statute of limitations for adverse possession and (2) the liability of an occupying cotenant for rent to other cotenants. Although the cases do not acknowledge a distinction between the two uses of "ouster," it is clear that the two fact situations require different elements of proof to support a conclusion of ouster.

. . . .

. . . the essence of the finding of an ouster in the adverse possession cases is a claim of absolute ownership and a denial of the cotenancy relationship by the occupying cotenant.

In the Alabama cases which adjudicate the occupying cotenant's liability for rent, a claim of absolute ownership has not been an essential element. The normal fact situation which will render an occupying cotenant liable to out of possession cotenants is one in which the occupying cotenant refuses a demand of the other cotenants to be allowed into use and enjoyment of the land, regardless of a claim of absolute ownership.

334 So.2d at 861.

The Alabama court concluded that although a finding of ouster in adverse possession cases requires a showing of absolute ownership and a denial of the co-tenancy, a lesser showing is sufficient where liability for rents is at issue. Id. at 861-62; compare 20 Am.Jur.2d Co-Tenancy and Joint Ownership § 43 (1965) with 3 Am.Jur.2d Adverse Possession § 6 (1962).

Courts in jurisdictions other than Alabama also recognize, at least implicitly, that a claim of absolute ownership is not a requirement for ouster in those cases not involving adverse possession. In Northcutt v. McPherson, 81 N.M. 743, 473 P.2d 357 (1970), the court stated that "[t]o constitute ouster there must be some express, open and unequivocal denial of the right to possession of the cotenant. . . ." Id. at 745, 473 P.2d at 359 (emphasis added). The court in Young v. Young, 37 Md. App. 211, 376 A.2d 1151 (1977), stated it slightly different:

Ouster has been defined as a notorious and unequivocal act by which one cotenant deprives another of the right to the common and equal possession and enjoyment of the property.

Id. at 221, 376 A.2d at 1158; see also Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d 1 (1946) (ouster must be proved by acts of an adverse character). Since the instant case does not involve an adverse possession claim, those cases cited by Morga involving adverse possession are not particularly relevant here. See Foshee v. Foshee, 278 Ala. 205, 177 So.2d 99 (1965); Tarver v. Tarver, 258 Ala. 683, 65 So.2d 148 (1953); Dimmick v. Dimmick, 58 Cal.2d 417, 374 P.2d 824, 24 Cal.Rptr. 856 (1962); Redfearn v. Kuhia, 53 Haw. 378, 494 P.2d 562 (1972); Quates v. Griffin, 239 So.2d 803 (Miss. 1970); Heggen v. Marentette, 144 N.W.2d 218 (N.D. 1966).

Both sides here agree that occupation of the whole by one co-tenant standing alone is never presumed to be adverse to the other co-tenants. 4A Powell, The Law of Real Property ¶ 603, p. 610 (1982). See also Northcutt v. McPherson. However, special facts can make it clear that the occupying co-tenant has ousted his co-tenants and has claimed as an individual more than his due as a co-tenant. 4A Powell, supra, at ¶ 603, p. 611 (1982). In this case, we conclude that Morga has claimed more than his due as a co-tenant in at least three respects.

First, Morga has interfered with Friedlander's right of entry. See generally 86 C.J.S., Tenancy in Common, § 19 (1954). When Friedlander moved out of the office in question, Morga changed the locks. Morga, in his affidavit, asserted that the locks were changed in order to protect the confidential files of clients and that at the time of the change, several people not occupying the office in question had keys to the premises. While the changing of locks in itself may not establish ouster, cf. Spiller v. MacKereth (placing locks on building, without evidence of intent to exclude other co-tenants, is insufficient to establish liability to pay rent), the evidence here is undisputed that Morga intended to restrict his co-tenant's right of entry. In a letter dated January 13, 1981, Morga told Friedlander the following:

Since you have now removed all of your belongings, there is no further need for you to have access to this complex, unless you decide to move back in, and the locks on the doors have been changed accordingly.

Thus, there is evidence to show that Morga intended to exclude Friedlander.

Morga attempts to counter this argument by insisting that there was not a total exclusion and that Friedlander could have entered during working hours if he needed access to the office in question. Furthermore, Morga emphasizes that he left the premises open on January 10, 1981, so that Friedlander could remove his belongings. However, the answer to Morga's argument is that Morga, while not claiming absolute possession of the office in question, was certainly claiming more than his due as a co-tenant. Morga and Friedlander each had equal rights with respect to the office in question and it was not for Morga to claim superior rights.

The second area in which Morga asserted a superior right was in removing Friedlander's name from the office glass front. Morga does not contest the fact that he caused Friedlander's name to be removed from the office glass front.

The third area in which Morga claimed more than his due as a co-tenant was in his interference with Friedlander's right to lease the common property to the extent of his interest. In Jackson v. Low Cost Auto Parts, Inc., 25 Ariz. App. 515, 544 P.2d 1116 (1976), the court recognized a co-tenant's right to lease when it stated that:

It is also true that one co-owner may lease the common property without consent of the other co-owners to the extent of his interest, the effect of which is to confer on the lessee the right to share a possession of the property with the other co-owners for the term of the lease. Johnston v. DeLay, 63 Nev. 1, 158 P.2d 547 (1945).

25 Ariz. App. at 516-17, 544 P.2d at 1117-18. Here, in a letter dated February 2, 1981, Morga told Friedlander that "[t]he only right that you have is to occupy the space." This position was emphasized again in a letter from Morga to Friedlander on February 10, 1981, wherein Morga stated:

I have always indicated and have stated in writing that you could return to this space anytime that you want; but you could not, I repeat, could not obligate me to accept tenants that you find to utilize the space that you left. . . . (emphasis in original)

Hence, Morga has interfered with Friedlander's right to lease his interest.

Friedlander had obtained Steve Wallace's permission to sublease the space in question.

We are of the opinion that the combination of changing locks, removing co-tenants' names, and interfering with lease rights constitutes ouster. Morga, nonetheless, contends that even if ouster exists, he is still entitled to contribution or contractual damages from Friedlander. He is incorrect. Morga recognizes that contribution is an equitable doctrine. Brown v. Brown, 58 Ariz. 333, 119 P.2d 938 (1941). Here, it simply is not equitable to require the ousted co-tenant to pay rent to the occupying co-tenant. See Young v. Young. See generally Green v. Higgins, 217 Kan. 217, 535 P.2d 446 (1975) (unclean hands doctrine). With respect to the contractual claim, the consideration for the agreement to pay a portion of the rent was the use and enjoyment of a particular portion of the office in question. Since that consideration was removed, the contract was breached by Morga and Friedlander was relieved of his rental obligation with respect to Morga. Cf. MacArthur v. Rostek, 483 P.2d 1351 (Colo.App. 1971) (termination of lease relieves tenant of rent obligations).

With respect to the Friedlanders' counterclaim for lost rents, this court expresses no opinion as to whether Morga would be entitled to a set off for the rent that he has paid pursuant to the lease. See generally Bender v. Bender, 50 Md. App. 174, 436 A.2d 518 (1981).

The Friedlanders have requested attorney's fees for this appeal pursuant to Rule 25, Arizona Rules of Civil Appellate Procedure, and A.R.S. § 12-2106. This request is denied because this appeal was not frivolous. See also Connor v. Cal-AZ Properties, 137 Ariz. 53, 668 P.2d 896 (App. 1983).

For the foregoing reasons, the judgment of the trial court is affirmed. The Friedlanders' request for attorney's fees is denied.

BROOKS, P.J., and CONTRERAS, J., concur.

MORGA v. FRIEDLANDER