DeHoney v. Hernandez

• Decision Date: 20 April 1979
• Docket Number: No. 14124-PR,14124-PR
• Citation: 595 P.2d 159,122 Ariz. 367
• Parties: Franklin R. DeHONEY and Virginia R. DeHoney, husband and wife, and Donald Malquist and Mary Jo Malquist, husband and wife, doing business as the Showcase, a Co-Partnership, Appellants, v. Serapio HERNANDEZ, David Wayne Hovis, Gerald Lee Edwards, James Hill, and the City of Casa Grande, a Body Politic, John Doe, One through Five (1-5), and XYZ Corporation, One through Five (1-5), Appellees.
• Court: Arizona Supreme Court

Page 159

595 P.2d 159

122 Ariz. 367

Franklin R. DeHONEY and Virginia R. DeHoney, husband and wife, and Donald Malquist and Mary Jo Malquist, husband and wife, doing business as the Showcase, a Co-Partnership, Appellants, v.Serapio HERNANDEZ, David Wayne Hovis, Gerald Lee Edwards, James Hill, and the City of Casa Grande, a Body Politic, John Doe, One through Five (1-5), and XYZ Corporation, One through Five (1-5), Appellees.

No. 14124-PR.

Supreme Court of Arizona, In Banc.

April 20, 1979.

Rehearing Denied May 22, 1979.

Stanfield, McCarville, Coxon, Cole & Fitzgibbons, by A. Thomas Cole, Casa Grande, for appellants.

Murphy & Hazlett, by Thomas M. Murphy, Scott Goering, Tucson, for appellees.

Michael W. Huddleston, Phoenix, amicus curiae for Legal Advisors' Association of Arizona in support of appellees.

J. LaMar Shelley, Mesa, amicus curiae for The League of Arizona Cities and Towns in support of appellees.

CAMERON, Chief Justice.

This is a petition for review of a decision and opinion of the Court of Appeals, Division Two, 122 Ariz. 314, 594 P.2d 1010.We have jurisdiction pursuant to Rule 23, Rules of Civil Appellate Procedure, 17A A.R.S.

We granted the petition for review to consider the following two questions:

1.Did the trial court abuse its discretion in setting aside plaintiffs' entry of default as to the four named police officer defendants?

2.Did the trial court err in finding that defendants owed no special duty to plaintiffs and therefore in granting defendants' motion for a directed verdict?

The facts viewed in the light most favorable to the parties opposing the motion for a directed verdict, Jackson v. H. H. Robertson Co., Inc., 118 Ariz. 29, 574 P.2d 822(1978), are as follows.Plaintiffs Franklin and Virginia DeHoney owned a jewelry and framing store in Casa Grande, Arizona, called the Showcase.During a large Indian jewelry sale in October, 1974, the DeHoneys employed two uniformed, off-duty Casa Grande police officers to guard the jewelry.During the sale Mr. DeHoney had several casual conversations with the officers regarding security systems because the DeHoneys planned to expand their inventory following the sale.Both officers recommended a silent alarm system.A third officer, who occasionally entered the store, had similar conversations with DeHoney.After the sale, a fourth Casa Grande patrolman entered the Showcase specifically to discuss the relative advantages of various security systems.He too suggested installation of a silent alarm system.Finally, DeHoney visited the police station where he spoke with Lt. Bain, who basically confirmed what the other officers had stated with respect to silent alarm systems.

All of the police officers with whom DeHoney had discussed silent alarm systems described the same general response procedure.In Casa Grande, silent alarms are installed in such a manner that the alarm is activated only at the police station.Once the alarm is triggered the dispatcher directs policemen to the building indicated.They secure the front and rear entrance so an intruder cannot escape and then remain there until the owner, who is notified by the dispatcher, arrives.The officers estimated an initial response time of 30 seconds to 2 1/2 minutes for the Showcase.They also informed DeHoney that a silent alarm, as opposed to an audible system, enhanced the likelihood of apprehending an intruder since the police are alerted to his precise location and the intruder is unaware that he has been detected.DeHoney testified that he had not considered burglar alarm systems prior to his conversations with the police, as he had been unaware of their feasibility for small businesses.

In January, 1975, the DeHoneys installed a silent burglar alarm system at the Showcase.It would be activated if the doors or windows were tampered with or if any object interrupted one of the several infrared beams that criss-crossed the interior of the store.

On 30 June 1975, the silent alarm for the Showcase was activated at the police station at 2:11 a. m. The dispatcher, defendant Edwards, immediately radioed the officers in the field.At 2:13 a. m. defendants Sgt. Hernandez and Officer Hill simultaneously arrived in front of the Showcase and defendant Officer Hovis arrived at the rear.The front and back doors were secure; the police saw no indications of disturbance.Sgt. Hernandez then instructed Edwards to telephone DeHoney and also directed Officer Hovis to remain in the general vicinity.Officers Hill and Hernandez left the area for other duties.

Edwards was delayed in telephoning DeHoney because he had other duties and also had difficulty in locating the telephone number.DeHoney was not reached until 30 minutes later at 2:45 a. m. He proceeded to the store quickly and entered it with Officer Hovis.A large quantity of jewelry had been stolen.Holes in the ceiling and debris on the floor below were clearly visible.

At trial, Tony Leon, the burglar, testified that he had entered the store through an air vent on the roof, broke through the ceiling, and jumped down to the floor.Within a few minutes, he heard the police at the front door.He dropped to the floor behind the counter and watched them inspect the door and talk for a few minutes before they departed.Thinking it had been just a routine door check, Leon filled a box with jewelry, broke the padlock on the back door and left.

At the time the alleged cause of action arose, the DeHoneys were in the process of finalizing a partnership agreement with plaintiffs Donald and Mary Jo Malquist, who had contributed nearly half of the stock of jewelry and also shared equally in the profits.The DeHoneys and Malquists brought this suit against the policemen who responded to the alarm, the dispatcher, and their employer, the City of Casa Grande, on the theory that their negligence had led to plaintiffs' losses.

Default was entered against the four individual police officers, but the trial court granted the officers' motion to set the entry of default aside.The court then granted defendants' motion for a directed verdict after the plaintiffs had presented their case.

The Court of Appeals reversed and remanded for a new trial.The plaintiffs petitioned for rehearing because the decision of the Court of Appeals affirmed the order of the trial court setting aside the entry of default against the four police officers.Defendants petitioned for rehearing because the Court of Appeals held that the trial court erred in granting defendants' motion for directed verdict.From the denials of the motions for rehearing, both plaintiffs and defendants petitioned this court for review, which we granted.

SETTING ASIDE THE ENTRY OF DEFAULT

Plaintiffs initially contend that the trial court abused its discretion in setting aside their entry of default against the four police officer defendants.

On 22 September 1975, plaintiffs filed their original complaint which named as defendants the City of Casa Grande and fictitious police officers and corporations.On 1 October 1975, Sgt. Hernandez and Officers Hovis and Edwards signed affidavits acknowledging receipt of the summons and complaint and further acknowledging that the city attorney had accepted service on their behalf.Officer Hill signed an identical affidavit on 2 October 1975.The acceptance of service signed by the City Attorney on 30 September 1975 states:

"(T)he undersigned does hereby accept service of Summons and Complaint for said defendants, City of Casa Grande, Members of the City Council, and the City's Police Department * * *."

On 9 October 1975, the City of Casa Grande filed its answer, which stated in part:

"As Defendant is unaware of the true identities of Defendants, Officer John Roe and Officer Richard Doe, therefore it cannot respond to any allegation concerning these individuals.

"This answer shall be deemed adopted by any fictitious defendants who are subsequently served by process and who were in fact employees or agents of the answering defendant, THE CITY OF CASA GRANDE, on or about the 30th day of July, 1975."

Plaintiffs did not amend their complaint to reflect the true names of the defendant police officers until 14 October 1977, more than two years later.On the same day plaintiffs filed an affidavit of default and default was entered against the four police officers.At the hearing the plaintiffs' attorney contended that the policemen had been served but had never filed an answer.He argued that because the term "defendants" in the acceptance of service signed by the city attorney is followed by a comma rather than a colon, "defendants" refers specifically to the four policemen.Moreover, plaintiffs' attorney pointed out that the answer filed by the city attorney was only on behalf of the city and any fictitious defendants subsequently served, whereas the individual police officers had been previously served.

The trial court found that the police officers had been timely served and that the answer filed by the city attorney was adequate on behalf of all the defendants, and therefore the default was set aside.The Court of Appeals affirmed.

Setting aside an entry of default is a matter within the sound discretion of the trial court.Gray v. Dillon, 97 Ariz. 16, 396 P.2d 251(1964).Rule 55(c),Rules of Civil Procedure, 16 A.R.S., states:

"For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(c)."

If the trial court was correct in finding that a timely answer had been filed on behalf of the four officers, then the defendants had not "failed to plead or otherwise defend" as required for an entry of default by Rule 55(a) of the Rules of Civil Procedure.The trial court then properly set aside the default because it was improperly entered in the first place.

However, even if we were to assume that the trial court erred in finding that...