## Facts

- A landlord leased real property to tenants under a written lease covering the 1937 term and containing a renewal provision.
- After the written term ended, the tenants remained in possession during the 1938 term and claimed a new oral lease or effective renewal allowed continued occupancy.
- The landlord denied any renewal or new lease and sued to recover possession on the ground the lease had terminated and the tenants were holding over.
- At trial, the tenants sought to argue that the renewal clause and their continued possession permitted an inference that a renewal had been executed or agreed upon despite no written renewal being introduced.
- The trial court restricted that inference-based argument and entered judgment awarding possession to the landlord.
- The tenants appealed.

## Issues

1. In an action to recover possession alleging expiration of a lease and absence of renewal, who bears the burden of proof on the essential negative allegation, and does that burden shift during trial?
2. Whether the evidence was sufficient to establish a new oral lease or valid renewal for the subsequent term.
3. Whether the trial court committed reversible error by preventing defense counsel from arguing that a renewal could be inferred from the renewal clause and continued possession.

## Decision

- The Arizona Supreme Court affirmed the judgment for the landlord.
- The court held that the ultimate burden of persuasion does not shift, though the burden of producing evidence may shift as the case proceeds.
- The court concluded the tenants failed to establish an enforceable new oral lease or renewal for the subsequent term.
- The court found no reversible error in limiting the tenants’ argument inviting an inference of renewal where the evidentiary support for that inference was inadequate.

## Legal Principles

- A party asserting a civil claim generally bears the burden to prove the elements of that claim by a preponderance of the evidence.
- When a negative allegation is an essential element of the claim, the claimant ordinarily bears the burden of proving that negative.
- The burden of proof (persuasion) remains fixed on the party who must prevail on the issue; it does not shift.
- The burden of producing evidence (going forward) may shift between parties after a prima facie showing.
- Continued possession after a lease term and the presence of a renewal clause, without sufficient evidence of mutual assent, may be inadequate to prove a renewal or new lease.

## Conclusion

The court affirmed a judgment restoring possession to the landlord, explaining that even essential negative allegations are ordinarily proved by the claimant, but the burden of persuasion remains constant while the burden of producing evidence may shift; on the record, the tenants did not present sufficient evidence of a renewal or new oral lease, and the trial court’s restriction on speculative renewal argument did not warrant reversal.


Harvey v. Aubrey, 87 P.2d 482 (Ariz. 1939)