Able Distributing Co., Inc. v. James Lampe, General Contractor, 1
| Decision Date | 11 April 1989 |
| Docket Number | CA-CV,No. 1,1 |
| Citation | 773 P.2d 504,160 Ariz. 399 |
| Court | Arizona Court of Appeals |
| Parties | ABLE DISTRIBUTING COMPANY, INC., an Arizona corporation, Plaintiff-Appellee, and Master Mechanical & Plumbing, Inc., an Arizona corporation, Defendant-Appellee, v. JAMES LAMPE, GENERAL CONTRACTOR, an Arizona general partnership, Garnishee-Appellant. 88-074. |
This appeal arises out of garnishment proceedings commenced by Able Distributing Company, Inc. (Able) against James Lampe, General Contractor, an Arizona general partnership (Lampe), on the basis of a default judgment it had obtained against Master Mechanical & Plumbing, Inc. (Master Mechanical). Following a hearing, the trial court granted judgment for Able on the garnishment against Lampe in the amount of $28,574.51. The issues raised in this appeal are: (1) whether the amount owed by Lampe to Master Mechanical was a contingent liability, (2) whether the debt was liquidated, (3) whether Lampe was denied due process, (4) whether the trial court improperly excluded evidence of back charges incurred after service of the writ of garnishment, and (5) whether an arbitration clause in the contract between Lampe and Master Mechanical made arbitration the sole vehicle for determining the amount of any debt.
We conclude that the trial court erred in its refusal to admit an exhibit evidencing back charges. We therefore find it necessary to remand the matter to the trial court for consideration of that exhibit. In all other respects, the judgment is affirmed.
In 1984, Lampe as an owner-builder entered into a plumbing subcontract with Master Mechanical under which Master Mechanical agreed to furnish materials and labor for an apartment complex consisting of 438 units to be constructed in Mesa, Arizona. The total contract price was $823,818. The apartment complex was completed and a certificate of occupancy was issued by the City of Mesa in May, 1986. Master Mechanical remained on the project beyond its completion through mid-July, 1986, performing repairs and maintenance services.
Able furnished materials to Master Mechanical for use in the Lampe project. On June 26, 1986, Able recorded a Notice and Claim of Mechanic's and Materialman's Lien against the apartment complex for $36,382.59 allegedly owed to it by Master Mechanical. AmFac Distribution Corporation (AmFac), another materials supplier for Master Mechanical on the Lampe project, recorded a lien for $38,713.01.
Able also filed a complaint against Master Mechanical for amounts owed for materials furnished Master Mechanical for use in other projects. Able eventually took a default judgment against Master Mechanical for $36,268.88 for materials furnished but not related to the Lampe project. On August 11, 1986, Able served a writ of garnishment on Lampe for the amount of the default judgment.
In its amended answer to the writ of garnishment, Lampe denied that it was indebted to or otherwise in possession of monies of Master Mechanical, while also conceding that at the time the writ of garnishment was served, the sum of $70,909.56 had not been paid to Master Mechanical under the plumbing subcontract. However, Lampe noted that various defects in Master Mechanical's work had caused Lampe to expend $5,557.63 to make necessary repairs and replacements. Lampe further explained that Able and AmFac had recorded liens for $36,382.59 and $38,713.01 respectively.
Able initially objected to Lampe's answer on the ground that the AmFac lien was invalid. Able later challenged various back charges made by Lampe against Master Mechanical, and alleged that additional monies were owed for extra work performed by Master Mechanical.
The trial court found that a hearing was necessary to determine whether Lampe had been indebted to Master Mechanical at the time the writ of garnishment was served. Following argument on various motions and several continuances, an evidentiary hearing was ultimately conducted over a period of several weeks beginning in May, 1987. At the conclusion of the proceedings, the trial court found that: 1) the writ was valid against the judgment debtor Master Mechanical, 2) $36,268.00 1 was due and owing on the underlying judgment obtained by Able against Master Mechanical, and 3) after deducting the amount of the liens and after appropriate back charges, Lampe owed Master Mechanical $28,574.51 at the time the writ of garnishment was served. On November 25, 1987, formal judgment on garnishment was entered for Able in the sum of $28,574.51 plus costs and attorney's fees. This appeal followed.
The garnishment hearing on the merits was held pursuant to A.R.S. § 12-1580. None of the parties requested findings of fact or conclusions of law. Where no findings of fact were made or requested, we must presume that the trial court found every fact necessary to support its judgment, and we will sustain those presumptive findings if they are justified by any reasonable construction of the evidence. Master Records, Inc. v. Backman, 133 Ariz. 494, 497, 652 P.2d 1017, 1020 (1982); Equitable Life Assurance Soc'y of the United States v. Anderson, 151 Ariz. 355, 357, 727 P.2d 1066, 1068 (App.1986).
It is not the prerogative of this court to weigh the evidence and determine the credibility of witnesses. Imperial Litho/Graphics v. M.J. Enters., 152 Ariz. 68, 72, 730 P.2d 245, 249 (App.1986). Further, we must view the evidence in a light most favorable to support the judgment of the trial court. State v. Veatch, 132 Ariz. 394, 396, 646 P.2d 279, 281 (1982); Yano v. Yano, 144 Ariz. 382, 384, 697 P.2d 1132, 1134 (App.1985).
The effect of a writ of garnishment is to impound any asset or property of the defendant which is found to be in the garnishee's hands pending resolution of the merits of the garnishor's claim. Kuffel v. United States, 103 Ariz. 321, 325, 441 P.2d 771, 775 (1968). In order to determine the liability of the garnishee, a court must look to the facts as they were found to exist at the time the writ was served. Peevey v. Dickson, 26 Ariz. 212, 215, 224 P. 808, 809 (1924). As of the time of service, there must be a clear, ascertainable debt existing to the defendant, a debt not contingent upon other events. Reeb v. Interchange Resources, Inc., 106 Ariz. 458, 459, 478 P.2d 82, 83 (1970); Weir v. Galbraith, 92 Ariz. 279, 287, 376 P.2d 396, 401 (1962).
Lampe contends that any liability it had to Master Mechanical was contingent when the writ of garnishment issued on August 11, 1986. Although conceding that it held some monies as retainage under its contract with Master Mechanical, Lampe argues that Master Mechanical's entitlement to this money was contingent upon its compliance with various provisions of the contract which had not been performed as of the date the writ issued. However, merely because a debt is disputed does not mean that it is "contingent." See generally 6 Am.Jur.2d Attachment and Garnishment § 126 (1963).
As an initial matter, we note that Lampe asserts that he was entitled to have the writ of garnishment quashed pursuant to the motion he had filed and that a hearing should not have been conducted. Specifically, Lampe contends that the trial court improperly allowed Able to try a contingent claim against Master Mechanical in the garnishment proceeding. We disagree.
A.R.S. § 12-1584(B) provides:
If a timely objection is filed the court, after hearing evidence and argument, shall determine whether the writ is valid against the judgment debtor, what amount is presently due and owing on the underlying judgment and what amount of non-exempt monies, if any, the garnishee was holding for or owed to the judgment debtor at the time the writ was served, and the court shall enter judgment on the writ against the garnishee for that amount or enter an order discharging the garnishee if no nonexempt monies are determined owing.
The scope of inquiry in garnishment proceedings to quash a writ embraces all issues relevant to a final determination of the garnishee's rights. See Sackin v. Kersting, 105 Ariz. 566, 567, 468 P.2d 925, 926 (1970). As expressly set forth in A.R.S. § 12-1584(A), a party who has an objection to the writ of garnishment or to the answer of the garnishee may file an objection and request a hearing. One purpose of the hearing is to determine whether the garnishee was indebted to the judgment debtor when the writ was served. A.R.S. § 12-1584(B). Therefore, where there are disputed facts and a timely objection has been filed, the determination of whether a debt is contingent can properly be made in the hearing.
We now address Lampe's contention that the debt owed to Able is contingent, and therefore, not subject to garnishment. Where further performance of a contract is necessary before money payment is due, it is generally held that the obligation to pay the money is not subject to garnishment until the condition has been fulfilled. See Transmix Concrete of Rockdale v. United States, 142 F.Supp. 306, 308 (W.D.Tex.1956); Wyatt Lumber & Supply Co. v. Hansen, 147 S.W.2d 366, 368 (Ark.1940); Vulcan Materials, Inc. v. Hall, 132 Ga.Ct.App. 145, 146, 207 S.E.2d 646, 647 (1974). See generally 6 Am.Jur.2d Attachment and Garnishment § 129 (1963); 38 C.J.S. Garnishment § 88 (1943). However, where a construction contract is substantially performed, many jurisdictions hold that the price of the contract becomes an indebtedness due and subject to garnishment. The denial of liability or assertion of a counterclaim for faulty performance does not render the obligation so uncertain or contingent as to make it not subject to garnishment. See Brunskill v. Stutman, 186...
To continue reading
Request your trial
-
Kirby v. Guardian Life Ins. Co. Of Am.
...for damages depends on a factual determination or if performance is not substantially complete. See Able Distrib. Co. v. Lampe, 160 Ariz. 399, 773 P.2d 504, 510 (Ariz.Ct.App.1989); Clapper, 497 S.W.2d at 122. However, the garnishee's mere denial of the judgment debtor's right of action does......
-
Markham Contracting Co. v. First Am. Title Ins. Co.
...without reliance on opinion or discretion." Id. "Whether a claim is liquidated is a question of fact." Able Distrib. Co. v. James Lampe, 160 Ariz. 399, 406, 773 P.2d 504, 511 (App. 1989). "Allthat is required is for a plaintiff to provide a basis for precise calculation that would make the ......
-
F & W Welding Service, Inc. v. ADL Contracting Corp.
...constitute a debt due to the contractor under certain circumstances; see Ransom v. Bidwell, supra; see also Able Distributing Co. v. Lampe, 160 Ariz. 399, 403, 773 P.2d 504 (1989), and authorities cited therein; F & W ignores the court's specific factual finding that the contract was not su......
-
Rose v. Stewart Title & Trust of Phoenix Inc.
...78, 821 P.2d 766, 769 (App. 1991). "Whether a claim is liquidated is a question of fact." Able Distrib. Co., Inc. v. James Lampe, Gen. Contractor, 160 Ariz. 399, 406, 773 P.2d 504, 511 (App. 1989). A liquidated claim occurs when "the evidence furnishes data which, if believed, makes it poss......
-
How to protect your CEO from being subject to an arbitration award, when not a party to the arbitration agreement.
...1984). (20) Heinig v. Hudman, 177 Ariz. 66, 72, 865 P.2d 110, 116 (App. 1993); Able Distrib. Co. Inc. v. James Lampe, General Contractor, 160 Ariz. 399, 410, 773 P.2d 504, 515 (App. (21) Heinig, 177 Ariz. at 72; Able Distrib. Co. Inc., 160 Ariz. at 410. (22) Ohio Dept. of Admin. Serv. v. De......