Anderson v. Southwest Sav. and Loan Ass'n

• Decision Date: 15 September 1977
• Docket Number: CA-CIV,No. 1,1
• Citation: 571 P.2d 1042,117 Ariz. 246
• Parties: , 22 UCC Rep.Serv. 1275 Donald L. ANDERSON and Katherine L. Anderson, husband and wife, Appellants, v. SOUTHWEST SAVINGS AND LOAN ASSOCIATION, a corporation, Appellee. 3314.
• Court: Arizona Court of Appeals

Page 1042

571 P.2d 1042

117 Ariz. 246, 22 UCC Rep.Serv. 1275

Donald L. ANDERSON and Katherine L. Anderson, husband and wife, Appellants, v. SOUTHWEST SAVINGS AND LOAN ASSOCIATION, a corporation, Appellee.

No. 1 CA-CIV 3314.

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

Sept. 15, 1977.

Rehearing Denied Nov. 7, 1977.

Review Denied Nov. 29, 1977.

Andrew G. Galasky, Phoenix, for appellants

Cahill, Hanson, Phillips & Mahowald by Gregory E. Hinkel, Phoenix, for appellee.

OPINION

NELSON, Presiding Judge.

Donald and Katherine Anderson, plaintiffs, filed an action in Maricopa County Superior Court against Mountaineer Mobile Homes Co. (Mountaineer), Kaufman & Broad Home Systems, Inc., and Southwest Savings and Loan Association (Southwest) to recover inter alia damages for breach of implied warranties involving the purchase of a mobile home. This action was consolidated with a pending declaratory judgment action brought by Mountaineer against Kaufman in which Mountaineer sought, among other things, a determination of Kaufman's liability for certain defects in mobile homes manufactured by Kaufman and sold to retail purchasers by Mountaineer. This appeal concerns only the propriety of a summary judgment entered in favor of the defendant, Southwest and against the plaintiffs Anderson. Plaintiffs' action against Southwest is based on Southwest's status as assignee of the note and security agreement plaintiffs gave as consideration for the purchase of a mobile home from Mountaineer. The summary judgment in favor of Southwest states several separate and distinct grounds for granting judgment in favor of Southwest and against the plaintiffs.

Plaintiffs first contend the summary judgment was entered in violation of Rule 58(d)(1), Arizona Rules of Civil Procedure. The trial court's minute entry granting summary judgment was dated June 19, 1975. The instruments on appeal disclose that on June 25, 1975 the trial court signed and approved the formal written judgment drafted by Southwest absent an indication that the proposed judgment had been served upon plaintiffs or their counsel for approval prior to its presentation to the trial court. Plaintiffs contend this contravened the specific provisions of Rule 58(d) and that the judgment should therefore be vacated. We disagree.

Plaintiffs' argument disregards the exclusionary language contained in the first part of Rule 58(d)(1), which states in part:

"In case of a judgment other than for money or costs, or that all relief be denied, the judgment shall not be settled, approved and signed until the expiration of five days after the proposed form thereof has been served upon opposing counsel unless the opposite party or his counsel endorses on the judgment an approval as to form." (Emphasis added).

The applicability of Rule 58(d)(1) depends not on the issues resolved prior to refusal of the relief requested, as plaintiffs basically contend, but upon the type of relief denied. Here it was the trial court's determination that Southwest was entitled to judgment as a matter of law, and that plaintiffs be denied all relief sought against Southwest. The court also assessed costs against the plaintiffs. Since, by the express terms of Rule 58(d)(1) a judgment providing "for money or costs, or that all relief be denied" need not be submitted to the adverse party for approval as to form, no error occurred when the judgment was signed by the court without its prior submission to the plaintiffs. The fact that the summary judgment recites findings upon which it was based in no way changes the result of the judgment "that all relief be denied". Rule 58(d)(1).

The next issue concerns the first basis on which the court granted summary judgment, namely, that the plaintiffs had failed to state a claim for which relief could be granted. Plaintiffs seek affirmative recovery against Southwest, the assignee of plaintiffs' note and security agreement, for various breaches of warranties with respect to a mobile home purchased from Mountaineer. It is undisputed that prior to the assignment of the note and security agreement from Mountaineer to Southwest, Southwest had had no dealings with the plaintiffs with respect to this purchase and in no way participated in the sale of the mobile home.

Plaintiffs contend the primary authority for an affirmative recovery of money damages in this case is found in A.R.S. § 44-3139, which states in part:

"A. Unless an account debtor has made an enforceable agreement not to assert defenses or claims arising out of a sale as provided in § 44-3119 the rights of an assignee are subject to:

1. All the terms of the contract between the account debtor and assignor and any defense or claim arising therefrom; . . . "

Plaintiffs' argument is that no "enforceable" agreement not to assert claims or defenses was made and therefore Southwest is liable for claims arising from the terms of the contract between plaintiffs and Mountaineer, Southwest's assignor. In support of this contention they have exerted much effort to explain why their waiver of claims or defenses against Mountaineer's assignee (Southwest) is unenforceable.

This convoluted argument overlooks entirely the clear language of A.R.S. § 44-3139(A) which concerns the "rights of an assignee " and what these rights are "subject to " if no enforceable agreement not to assert claims or defenses has been made. Assuming, for the purposes of this discussion only, that no such enforceable agreement exists, it is clear that A.R.S. § 44-3139(A) does not create a cause of action for money damages against an...