Country Escrow Service v. Janes

• Decision Date: 16 January 1979
• Docket Number: No. 9164-,E,No. 2,CA-CIV,9164-,2
• Citation: 591 P.2d 999,121 Ariz. 511
• Parties: COUNTRY ESCROW SERVICE, an Arizona Corporation, as Trustee under Trustdward Chesin and Ruth Carol Chesin, husband and wife, Plaintiffs-Appellants, v. Kenneth R. JANES, Jr., and Rene Janes, husband and wife, and Kenneth R. Janes, Sr., and Catherine Janes, husband and wife, Defendants-Appellees. 3038.
• Court: Arizona Court of Appeals

Page 999

591 P.2d 999

121 Ariz. 511

COUNTRY ESCROW SERVICE, an Arizona Corporation, as Trustee under Trust No. 9164-T, Edward Chesin and Ruth Carol Chesin, husband and wife, Plaintiffs-Appellants, v. Kenneth R. JANES, Jr., and Rene Janes, husband and wife, and Kenneth R. Janes, Sr., and Catherine Janes, husband and wife, Defendants-Appellees.

No. 2 CA-CIV 3038.

Court of Appeals of Arizona, Division 2.

Jan. 16, 1979.

Rehearing Denied Feb. 21, 1979.

Review Denied March 13, 1979.

Law Offices of J. Emery Barker by J. Emery Barker and James P. F. Egbert, Tucson, for plaintiffs-appellants

Mary Anne Peters, Tucson, for defendants-appellees.

OPINION

RICHMOND, Chief Judge.

This appeal is resolved by our determination of one issue: did evidence of the wrongful eviction of defendants support their recovery on their counterclaim for emotional distress and resulting physical harm?

Country Escrow Service as trustee for Edward and Ruth Carol Chesin commenced an action for unpaid rent. With their answer defendants filed a counterclaim seeking compensatory and punitive damages for fraud, wrongful eviction with intentional infliction of emotional distress, and conversion. At the conclusion of defendants' case on the counterclaim the court granted plaintiffs' motion to dismiss the fraud count but denied similar motions as to the other claims. The jury returned verdicts in favor of Kenneth R. Janes, Jr., and his wife, Rene, in the sum of $21,000 as compensatory damages and $15,000 punitive damages, and in favor of Kenneth R. Janes, Sr., and his wife, Catherine, in the sum of $10,000 compensatory damages and $5,000 punitive damages. The plaintiffs' claim was withdrawn from the jury by agreement of the parties and submitted to the court, which awarded an offset of $864.17 for unpaid rental and $325 for attorney's fees.

The counterclaim went to the jury on general verdicts and it is not possible to determine what portion if any of the awards was for conversion or wrongful eviction. Because we find the evidence insufficient to present a jury question on the claim for intentional infliction of emotional distress, we reverse and remand for a new trial on the other theories.

In determining whether the trial court should have directed a verdict on the counterclaim, we view the evidence most strongly against the plaintiffs and in the light most favorable to defendants. Sturm v. Heim, 95 Ariz. 300, 389 P.2d 702 (1964). In the summer of 1975 the parties (with the exception of Kenneth Janes, Sr.) executed a lease for store space in plaintiffs' El Capri Shopping Center. The minimum rent was $536 per month, payable on the first day of each month. Defendants paid the sum of $1,072 as and for the first and last month's minimum rent. Plaintiffs, however, voluntarily applied that sum to the first two months, September and October, 1975. During October the parties agreed to reduce the minimum rental for November and December to $328.78 per month. The November rent was paid at the reduced rate. On or about December 5, Kenneth Janes, Jr., went to Edward Chesin's office in the shopping center to discuss the December rent, which was unpaid. Chesin told him not to worry, they would talk about it later.

Later in December, Chesin submitted to defendants for their signature a statement regarding their tenancy, which was to be used by plaintiffs in applying for a mortgage on the shopping center. On December 31, Kenneth Janes, Sr., informed Chesin that defendants refused to sign the statement as submitted because it did not reflect the reduction in the rental rate for November and December, and because it stated the tenant had no defense of offset or counterclaim against the lessor. On January 3, the second business day after refusal to sign the statement, when Mr. and Mrs. Janes, Jr., went to open the store in the morning they were denied entrance by a uniformed deputy sheriff, who had been employed by Chesin to seize the premises and its contents. The locks in the doors had been changed. It is undisputed that plaintiffs had not given defendants notice by registered mail as required by the lease before it could be terminated for default in the payment of rent. Defendants were unable to regain possession of their inventory and other contents of the store until plaintiffs were ordered a second time to release the contents following two court hearings in February.

The jury was instructed:

Damages for wrongful eviction may include...