Choisser v. State ex rel. Herman, 1

• Decision Date: 25 May 1970
• Docket Number: No. 1,CA-CIV,1
• Citation: 12 Ariz.App. 259,469 P.2d 493
• Parties: Helen CHOISSER, a single woman, Appellant, v. The STATE of Arizona, ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellee, D. V. Merrick and Ruth Merrick, his wife, Amicus Curiae, Stephen W. Pogson, Trustee, Amicus Curiae. 1013.
• Court: Arizona Court of Appeals

Page 493

469 P.2d 493

12 Ariz.App. 259

Helen CHOISSER, a single woman, Appellant, v. The STATE of Arizona, ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellee D. V. Merrick and Ruth Merrick, his wife, Amicus Curiae Stephen W. Pogson, Trustee, Amicus Curiae.

No. 1 CA-CIV 1013.

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

May 25, 1970.

Rehearing Denied July 20, 1970.

Cavness, DeRose, Senner & Foster, by Jack C. Cavness, Phoenix, for appellant.

Gary K. Nelson, Atty. Gen., by Stanley Z. Goodfarb, Sp. Asst. Atty. Gen., Phoenix, for appellee.

Stevenson, Warden & Smith, by Robert W. Warden, Flagstaff, for D. V. Merrick and Ruth Merrick, his wife, amici curiae.

Evans, Kitchel & Jenckes, by Roger H. Broach, Phoenix, for Stephen W. Pogson, Trustee, amici curiae.

JACOBSON, Acting Presiding Judge.

The assertion of a lessee's loss of business as an independent item of damages resulting from the state's exercise of its power of eminent domain is presented in this appeal from a summary judgment entered in the Superior Court of Coconino County.

On April 14, 1967, plaintiff-appellee State of Arizona condemned a portion of a property known as 'Truck City' located on the north side of U.S. 66 east of its intersection with U.S. 89 in East Flagstaff, Arizona. The project necessitating this acquisition was the construction of an interchange connecting U.S. 66, 89 and Interstate 40, the latter having been built south of U.S. 66. The property had 364.71 feet of frontage on U.S. 66 and was improved with a tire warehouse, a large service station, a cafe and a garage. The property contained approximately 62,650 sq. ft. Condemned were 12,678 sq. ft. from its northwestern side. Approximately 50,000 sq. ft. remained after the taking as well as 311.5 feet of frontage on U.S. 66. The property condemned consisted of the tire warehouse and a very small portion of the service station area. The service station building, the garage, and the cafe were untouched. Defendant-appellant Helen Choisser was the lessee, under three separate leases, of the warehouse, the service station, the cafe and the garage.

On April 27, 1967, a hearing was held pursuant to A.R.S. § 12--1116 (Supp.1969--70) at the conclusion of which the court granted immediate possession of the property condemned to the state. Discovery procedures continued after the hearing and a trial on the issues of damages was subsequently set for June 3, 1967. On May 16, 1967, plaintiff moved for a partial summary judgment. Although several persons were named as defendants in the condemnation complaint, the summary judgment motion was directed only against Mrs. Choisser, the appellant herein. (It is apparent that the value of the fee interest in the property condemned had been settled.) The motion was heard and summary judgment granted on May 31, 1968--three days prior to the scheduled trial.

Although counsel for appellant appeared and presented oral argument at the hearing on the motion for summary judgment no responsive memorandum, affidavit, exhibits, or new testimony were ever offered in opposition to this motion. However, the record before the trial court at the time of the hearing contained appellant's answers to interrogatories, admissions on file, and deposition.

As a general rule a written response is required whenever a motion is filed. Rule IV, Uniform Rules of Practice of the Superior Court, 17 A.R.S. (Supp.1969--70). If the opposing party fails to respond in writing the court may, in its discretion, dispose of the motion summarily. Rule IV(b), Uniform Rules of Practice, supra. However, where the motion is one for summary judgment there are certain limitations on the exercise of the court's discretion. A failure to respond to the motion with a written memorandum or opposing affidavits cannot, by itself, entitle the movant to a summary judgment. The trial court is required to consider those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file which are brought to the court's attention by the parties. Pitzen's Wig Villa v. Pruitt, 11 Ariz.App. 332, 464 P.2d 652 (1970); Rule 56(c), Rules of Civil Procedure, 16 A.R.S. (Supp.1969--70). It is true that Rule 56(e), Rules of Civil Procedure, supra, states that 'an adverse party may not rest upon the mere allegations or denials of his pleading' and that if he does not respond summary judgment shall be entered against him, but only 'if appropriate.' Moreover, the required response may be 'by affidavits or as otherwise provided in this rule.' Id. There are two prerequisites that must be met before entry of summary judgment is appropriate: (1) the record brought to the trial court's attention must show that there is no genuine dispute as to any material fact and that only one inference can be drawn from those undisputed material facts; and (2) that based on the undisputed material facts the moving party is entitled to a judgment as a matter of law. Rule 56(c), Rules of Civil Procedure, supra. The admonition in Rule 56(e) means that an adverse party who fails to respond does so at his peril because uncontroverted evidence favorable to the movant, and from which only one inference can be drawn, will be presumed to be true. Pitzen's Wig Villa Pruitt, supra. If that uncontroverted evidence would as a matter of law entitle the movant...