Cagle v. Carlson

• Decision Date: 29 January 1985
• Docket Number: CA-CIV,No. 1,1
• Parties: Ray E. CAGLE, Plaintiff-Appellant, v. Mary E. Cagle CARLSON, dealing with her sole and separate property; Paul W. Mercer and Florence L. Mercer, individually and as husband and wife; Gertrude Doyel, widow, Defendants-Appellees. 6781.
• Court: Arizona Court of Appeals

Page 1343

705 P.2d 1343

146 Ariz. 292

Ray E. CAGLE, Plaintiff-Appellant, v. Mary E. Cagle CARLSON, dealing with her sole and separate property; Paul W. Mercer and Florence L. Mercer, individually and as husband and wife; Gertrude Doyel, widow, Defendants-Appellees.

No. 1 CA-CIV 6781.

Court of Appeals of Arizona,

Division 1, Department B.

Jan. 29, 1985.

Reconsideration Denied March 21, 1985.

Review Denied Sept. 4, 1985.

Molloy, Jones, Donahue, Trachta, Childers & Mallamo, P.C. by Herbert Mallamo, Phoenix, for plaintiff-appellant

John P. Moore, Phoenix, for defendant-appellee, Cagle/Carlson.

Stephen D. Chaya, Phoenix, for defendants-appellees, Mercer and Doyel.

OPINION

GREER, Judge.

This is an appeal from a suit to set aside a sheriff's sale ordered as a result of foreclosure proceedings upon the appellant Cagle's default on a promissory note.

In August 1972, the appellant gave a note of $50,000 to his wife Mary Cagle (appellee Cagle Carlson). She thereafter assigned $15,000 of the note to her attorney Paul Mercer. Cagle subsequently defaulted on the note, and both Mercer and Cagle Carlson then brought foreclosure actions in March 1973 against the properties secured by the note. Mary Cagle was granted summary judgment in her suit and Ray Cagle was granted summary judgment in the Mercer action. Mary Cagle then proceeded to execute on the judgment in her suit, and Mercer, using a credit bid of $20,000, purchased the real property on Mary's behalf. In January, 1975, the appellant brought the present action to set aside the December, 1974 sale.

On November 10, 1975, the trial court granted a motion to dismiss filed by the defendants (appellees in the present suit). Appeal was taken, and this court issued a memorandum decision in January 1980. Cagle v. Cagle, 1 CA-CIV 4135 Memorandum Decision (Ariz.App. Jan. 15, 1980). We held that the motion to dismiss should be reversed, since the trial court had improperly refused to deal with the issues raised. Specifically, we found that the trial court erred in ruling that the issues raised in the original complaint had been previously tried in another suit.

The matter was remanded and on July 29, 1980, the defendants filed a new motion for summary judgment on the issues of unclean hands, waiver, and tender. This motion was denied October 1, 1980. On October 2, the defendants filed a motion for dismissal claiming the plaintiffs had failed to join an indispensable party. This motion was also denied.

An amended complaint was filed on August 6, 1981, adding the claimed indispensable party, and offering to pay to the defendants the amount of the underlying judgment. On December 9, 1981, defendant Mary Cagle Carlson filed a motion for summary judgment, and on December 14, defendants Mercer and Doyel (the claimed indispensable party) did the same. In January, 1982, the court sought additional memoranda on the issue of tender. Judgments were subsequently entered for the defendants on April 26, 1982, from which the present appeal is taken.

The primary issue raised by the appellant is that the trial court was precluded from finding there were no material issues of fact in the case by virtue of this court's memorandum decision. They argue that under a "law of the case" or "res judicata" theory, the memorandum decision was a mandate requiring the case to be heard on the merits. We disagree.

In the case of In Re Monaghan's Estate, 71 Ariz. 334, 227 P.2d 227 (1951), our supreme court addressed the effect a prior appellate decision has on subsequent determinations in the same case. The court found two exceptions to the "law of the case" rule, stating, "[W]here the court expressly reserves its decision on any point raised in the first appeal it is not conclusive as to those matters reserved.... Nor is it conclusive on points where the first decision is ambiguous and conflicting." 71 Ariz. at 336, 227 P.2d 227 (citations omitted). In the present case, although our first decision stated, "[I]t appears that Mr. Cagle may have stated a cause of action." Slip op. at 5, we expressly reserved determination on the substantive issues, stating, "We wish to make it abundantly clear that our decision is not an adjudication of the merits of this case. Rather, this case is remanded for the litigants and court to deal with the notice, conscionability and other matters claimed as error relating to the sheriff sale." ¹ Slip op. at 5-6. In our opinion, the issues subsequently addressed by the trial court (and now this court) were not precluded by our previous memorandum decision.

Cases cited by appellant are distinguishable from the case at bar. In Tucson Gas and Electric Co. v. Superior Court, 9 Ariz.App. 210, 450 P.2d 722 (1969), for example, division two of this court dealt with specific errors that arose at trial, and found its earlier decision to implicitly require a "retrial." Appellant also cites Hurst v. Hurst, 1 Ariz.App. 603, 405 P.2d 913 (1965). That decision, however, deals with waiver by failure to object at trial, and we do not find the case in point.

We hold, therefore, that the issues before the trial court had not been previously determined when it entered summary judgment for the defendants.

Turning to the merits of the case, the appellees argue that the grant of summary judgment was appropriate, and cite several grounds to support the judgment. They assert that the entry is proper since tender of the amount of judgment was not made. Since we find the tender issue dispositive, we will not discuss other contentions made by appellees.

The appellee argues that summary judgment was properly granted since the plaintiff did not tender the amount of judgment prior to moving to set aside the sheriff's sale. In Young Mines Co. v. Sevringhaus, 38 Ariz. 160, 298 P. 628 (1931), our supreme court held:

This is an equitable proceeding for the foreclosure of a mortgage, and in passing on the motion the general rules of equity should apply. Prominent among these rules is the familiar one that he who seeks equity must do equity. It is not disputed that defendant is both legally and morally indebted to plaintiff for the amount of the judgment for which the property was sold. It is but equitable and the rule sustained by the weight of authority that, as a condition precedent to the setting aside of the sale, defendant should tender to plaintiff the amount of the judgment with costs and interest.

38 Ariz. at 166, 167, 298 P. 628 (citations omitted). Accord, Bracken v. Kyle, Inc., 589 S.W.2d 501 (Tex.Civ.App.1979); Pachter v. Woodman, 534 S.W.2d 940 (Tex.Civ.App.1976), rev'd on other grounds, 547 S.W.2d 954 (1977).

Appellants' responses to the tender issue are that principles of res judicata, or more properly, claim preclusion, bar this issue; that an offer to make payment suffices as a tender; and that in any event payment of the judgment was made in full.

We first address appellants' contention that prior denial of a motion for summary judgment constitutes res judicata when a new motion for summary judgment is made, based on the same grounds. In Mozes v. Daru, 4 Ariz.App. 385, 420 P.2d 957 (1966), division two of this court discussed the practice of renewing a motion for summary judgment after such a motion had been denied. The court characterized such a practice as an abuse of the system, and stated that repeated motions for summary judgment would not be allowed. The court also noted, however, that no purpose would be served by forcing a case to trial where no genuine issue of fact exists. Further, the court stated, "Hence, there is no iron clad rule that a denial of such a motion is res judicata and absolutely precludes renewal or the making of a subsequent motion for the same relief." 4 Ariz.App. at 389, 420 P.2d 957. Here, further discovery was undertaken between the time of the denial of the July, 1980 motion for summary judgment and the December 1981 filing of the new motion. Therefore, even though successive motions were filed, we find no abuse of the system in the present case. We also note that "tender" involves more than merely an offer to pay the amount of the judgment. The appellant argues, relying upon our decision in Nelson v. Cannon, 126 Ariz. 381, 616 P.2d 56 (App.1980), that his statement in the 1981 amended complaint offering to pay "any and all sums which may be, or found by the Court to be due and payable under or upon said promissory note and mortgage securing same" is sufficient to overcome the lack of tender at the time of the original complaint. Beyond the fact that the offer came over six years after institution of the action, we find that the statement does not constitute "tender" of the amount of judgment.

In Nelson, we noted that, as a condition precedent to entitlement to the remedy of specific performance, a buyer must show that he "stood ready, willing and able to perform." 126 Ariz. at 385, 616 P.2d 56. That case, however, dealing with specific performance, does not render any less valid the decision in Young Mines Co. v. Sevringhaus. Furthermore, our supreme court, in an early decision, found "tender" to be more than merely the offer to pay. In Somerton State Bank v. Maxey, 22 Ariz. 365, 197 P. 892 (1921), the court held:

[Tender] imports, not merely the readiness and the ability to pay or perform at the time and place mentioned in the contract, but also the actual production of the thing to be paid and delivered over, and an offer of it to the person to whom the tender is to be made; and the act of tender must be such that it needs only acceptance by the one to whom it is made to complete the transaction.

22 Ariz. at 369, 197 P. 892 (citations omitted). Accord, Bembridge v. Miller, 235 Or. 396, 385 P.2d 172 (1963). In the present case, we hold that appellant's offer in the amended complaint to pay the amount of judgment did not satisfy the requirement of "tender" to the appellees as a condition precedent to setting aside the sale.

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