Bendalin v. Valley Nat. Bank of Arizona

• Decision Date: 25 September 1975
• Docket Number: No. 1,CA-CIV,1
• Citation: 24 Ariz.App. 575,540 P.2d 194
• Parties: Sherman BENDALIN, as Special Administrator of the Estate of Hector M. Garcia and Phillip Weeks, Guardian of the Estate of Hector Garcia, Jr. and Edwin Garcia, Appellants, v. The VALLEY NATIONAL BANK OF ARIZONA, a national banking association, J. C. Galipeau, Randall Rambler, Inc., an Arizona Corporation, Maricopa County, a governmental body, James Marlar, R. J. Ellis and Peter Kiewitt, Jr., dba Rawlins, Ellis, Burrus & Kiewitt, a co-partnership, and John Does 1 through 10, Appellees. 2452.
• Court: Arizona Court of Appeals

Page 194

540 P.2d 194

24 Ariz.App. 575

Sherman BENDALIN, as Special Administrator of the Estate of Hector M. Garcia and Phillip Weeks, Guardian of the Estate of Hector Garcia, Jr. and Edwin Garcia, Appellants, v. The VALLEY NATIONAL BANK OF ARIZONA, a national banking association, J. C. Galipeau, Randall Rambler, Inc., an Arizona Corporation, Maricopa County, a governmental body, James Marlar, R. J. Ellis and Peter Kiewitt, Jr., dba Rawlins, Ellis, Burrus & Kiewitt, a co-partnership, and John Does 1 through 10, Appellees.

No. 1 CA-CIV 2452.

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

Sept. 25, 1975.

Rehearing Denied Oct. 22, 1975.

Review Denied Dec. 2, 1975.

Meyer & Vucichevich, by Richard P. Meyer, Steven J. Wells, Phoenix, for appellants.

Snell & Wilmer, by Mark Wilmer, Lawrence C. Wright, Phoenix, for appellee The Valley Nat. Bank.

Udall, Shumway, Blackhurst, Allen Bentley & Lyons, P.C., by John H. Lyons, Mesa, for appellee Randall Rambler, Inc.

Gust, Rosenfeld, Divelbess & Henderson, by James F. Henderson, Phoenix, for appellees James Marlar, R. J. Ellis & Peter Kiewitt, Jr., dba Rawlins, Ellis, Burrus & Kiewitt.

OPINION

OGG, Presiding Judge.

The plaintiffs, Sherman Bendalin, Special Administrator of the Estate of Hector M. Garcia, and Phillip Weeks, Guardian of the Estate of Hector Garcia, Jr. and Edwin Garcia, filed an action in the Maricopa County Superior Court to recover damages for the wrongful death of Hector Garcia. The plaintiffs claim they are entitled to damages caused by the defendants' wrongful conduct, which generally can be classified as malicious prosecution, abuse of process, wrongful attachment and intentional infliction of mental anguish. Each defendant filed a motion for summary judgment; the trial court granted the motions and the plaintiffs now appeal.

It is our opinion that the plaintiffs did not have a cause of action and that the trial court was correct in granting all of the defendants' motions for summary judgment.

The facts of this case are tragic and bizarre. The defendant Randall Rambler, Inc. sold a used car to Hector Garcia. The Purchase Money Security Agreement and Contract of Sale arising from this transaction were assigned to the defendant The Valley National Bank of Arizona, without recourse. Thereafter the car developed numerous mechanical problems; Garcia returned the car to Randall Rambler and refused to make further payments on his contract. The car was later sold by the Bank under the provisions of § 44--3150, Arizona Revised Statutes, and a deficiency judgment was rendered against Garcia.

After a series of unsuccessful attempts to collect the unpaid judgment the Bank, through its attorneys, instructed the Maricopa County Sheriff's Department to levy the writ of attachment upon Garcia's mobile home. As Deputies Stone and LaRue arrived to carry out the levy, Hector Garcia stepped up behind Deputy LaRue and shot and killed him. Garcia then engaged Deputy Stone in a gun battle in which both were fatally wounded. This wrongful death action was then filed, alleging, in essence, that the wrongful acts of the defendants drove Garcia insane, and that while insane he engaged in a gunfight with the deputies, which was tantamount to suicide.

Plaintiffs claim the used car was defective and that Garcia effectively rescinded the purchase contract when he returned the defective car to Randall Rambler, Inc. They allege Garcia therefore owed nothing on his contract and that all attempts to collect were illegal and part of a conspiracy against Garcia. They claim the sale of the car by the Bank violated ARS § 44--3150 in that the sale was not conducted in a 'commercially reasonable' manner. Plaintiffs further claim the Bank and the attorneys representing the Bank made a wrongful attachment by performing the acts set forth as follows: They attached the mobile home which had a value greatly in excess of the claim; they maliciously attached exempt property and they filed a defective, false affidavit on attachment. A reading of the record before us does not bear out these allegations. It appears the Bank and its attorneys merely attempted to collect a legal debt and that there was no conspiracy among the defendants to harm Mr. Garcia.

It is a well settled rule in the appellate court review of a judgment sustaining a motion for summary judgment that 'the record must be viewed in the light most favorable to the party opposing the motion for summary judgment.' Sarti v. Udall, 91 Ariz. 24, 369 P.2d 92 (1962). Another well established rule in considering the review of a judgment of this nature is that '(a) summary judgment should not be granted when there is an issue of fact, nor where there is the slightest doubt as to the facts.' Lujan v. MacMurtrie, 94 Ariz. 273, 383 P.2d 187 (1963).

Assuming all the allegations against the defendants are true and viewing the record in the light most favorable to the plaintiffs we find the plaintiffs still have not established a cause of action for the wrongful death of Hector Garcia.

Plaintiffs claim that all of these alleged wrongs by the defendants are sufficient in this fact situation to establish plaintiffs' tort claim for intentional infliction of emotional distress.

The Restatement defines this tort in terms of 'outrageous conduct causing...