Fridena v. Maricopa County

• Decision Date: 14 December 1972
• Docket Number: No. 1,CA-CIV,1
• Citation: 18 Ariz.App. 527,504 P.2d 58
• Parties: Christine FRIDENA, a widow, Appellant, v. MARICOPA COUNTY, a political subdivision of the State of Arizona, and J. Robert Stark, Barney Burns and Henry H. Haws, as members of and constituting the Board of Supervisors of Maricopa County, John Mummert, Sheriff of Maricopa County, and Georgiana Mummert, his wife, Robert H. Renaud and Margaret Renaud, husband and wife, Appellees. 1641.
• Court: Arizona Court of Appeals

Page 58

504 P.2d 58

18 Ariz.App. 527

Christine FRIDENA, a widow, Appellant, v. MARICOPA COUNTY, a political subdivision of the State of Arizona, and J. Robert Stark, Barney Burns and Henry H. Haws, as members of and constituting the Board of Supervisors of Maricopa County, John Mummert, Sheriff of Maricopa County, and Georgiana Mummert, his wife, Robert H. Renaud and Margaret Renaud, husband and wife, Appellees.

No. 1 CA-CIV 1641.

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

Dec. 14, 1972.

Miller & Haggerty, by Philip M. Haggerty, Phoenix, for appellant.

Jennings, Strouss & Salmon, by William R. Jones, Jr., and E. Lee, Phoenix, for appellees Maricopa County, Stark, Burns, Haws, and Mummert.

Val A. Cordova, J. Gordon Cook, Joseph B. Miller and John H. Seidel, Phoenix, for appellees Renaud.

D. L. GREER, Superior Court Judge.

Appellant Christine Fridena brings this appeal from a judgment granting defendants summary judgment in Maricopa County Superior Court. In her complaint plaintiff Fridena alleged several counts of tortious conduct by defendants in the issuance and service of a writ of restitution. Defendant Robert H. Renaud previously brought an action of forcible entry and detainer against Physicians and Surgeons Hospital, Inc. The forcible detainer action was assigned Maricopa County Superior Court No. 222278. Plaintiff Fridena was not joined in the action. The case was tried to a jury before the Honorable William A. Holohan on 16 May 1969. At the close of the case the Court pronounced a directed verdict in favor of Renaud, finding the Physicians and Surgeons Hospital, Inc., guilty of forcible detainer. A minute entry was entered on May 16 reflecting the Court's pronouncement of verdict and findings.

A formal written judgment was presented to the trial judge on 20 May 1969. Simultaneously the following minute entry was entered:

'A form of judgment having been presented, the Court finds that there is a forceable detainer action and therefore, pursuant to the spirit of the statute made and provided in said cause that there is no necessity for said judgment to be lodged and it is

'ORDERED that the formal written judgment is signed, settled and approved this date.'

By the judgment, Renaud was granted possession of the premises and further granted judgment against the Physicians and Surgeons Hospital for rent due in the sum of $15,000 and:

'. . . that a Writ of Restitution will issue out of this court in favor of the Plaintiff and against the Defendant five days after the date of this judgment if the Defendant has not surrendered the premises prior to that date.'

The judgment was delivered to the trial court's deputy clerk on said May 20, 1969. However, the filing stamp indicating filing not affixed until 21 May 1969. Thereafter with the Superior Court Clerk's office was on 28 May 1969 a writ of restitution was issued and executed. It is worded as follows:

'Whereas, the plaintiff above named, on the 20th day of May, 1969, recovered a judgment in the Superior Court of the State of Arizona in and for the County of Maricopa, against PHYSICIANS AND SURGEONS HOSPITAL, INC., an Arizona corporation, that he, the above-named Plaintiff, have restitution of the following described premises situated in the County of Maricopa, State of Arizona, to wit:

(Property description incorporated by reference thereto)

and that he recover from the said PHYSICIANS AND SURGEONS HOSPITAL, INC., an Arizona corporation, the sum of FIFTEEN THOUSAND AND NO/100 ($15,000.00) DOLLARS for rent due and unpaid at the date of judgment.

'NOW, THEREFORE, you the said officer to whom this Writ is directed, are hereby commanded to cause the said PHYSICIANS AND SURGEONS HOSPITAL, INC., an Arizona corporation, to be forthwith removed from the said premises, and that you deliver the peaceable possession thereof to the said Plaintiff ROBERT H. RENAUD and that you maintain and defend his peaceable possession of said premises, and that out of the personal property of said PHYSICIANS AND SURGEONS HOSPITAL, INC., an Arizona corporation, you cause to be levied the rents aforesaid, together with the sum of ONE HUNDRED FIVE AND 10/100 ($105.10) DOLLARS costs and that you return this Writ with your doings thereon.'

At the time the writ was executed, deputy sheriffs of Maricopa County physically removed plaintiff Fridena from the hospital premises and caused her arrest for obstructing justice during the process of removing her.

The case Sub judice was filed by Mrs. Fridena against Robert H. Renaud and Margaret Renaud, husband and wife (hereinafter referred to as 'Renaud'), John Mummert, the Maricopa County Sheriff, and his wife, Georgiana Mummert (hereinafter referred to as 'the Sheriff'), and Maricopa County, together with its Board of Supervisors (hereinafter referred to as 'the County'). Plaintiff alleges tortious conduct by the County in that:

1) The writ of restitution was prematurely issued and that the deputy sheriffs acting as agents of the County were negligent to plaintiff by failing to ascertain the legality of the writ;

2) That the County deprived the Plaintiff of the lawful use and benefit of her property; and

3) That, at the time the writ was served, the County committed an assault and battery upon Mrs. Fridena by 'laying hands upon her' which was not privileged by the terms of the writ;

4) That the County caused the arrest of Mrs. Fridena for obstructing justice while knowing or should have known that the charges were false;

5) That the above acts of the County subjected her to grave humiliation and were the direct cause of her severe emotional distress and that these acts were done for the purpose of said distress or with the knowledge that such distress would occur.

Plaintiff's complaint further alleges tortious conduct against Renaud in that he:

1) Caused the writ of restitution to be issued and served prematurely;

2) Directed the deputy sheriffs to execute the writ in the illegal manner as described in the allegations against the County.

The several defendants by their respective counsel filed general denials, then moved for summary judgment. Defendant Renaud's motion for summary judgment incorporated attached affidavits alleging that Renaud did not direct or advise the Maricopa County Sheriff in the manner of executing the writ nor instruct the Sheriff in the amount of force to be used and that he was not present at the time nor did he ratify or affirm the actions of the officers.

The County's motion for summary judgment incorporated a copy of a criminal complaint charging plaintiff with obstructing police officers in the performance of their duties. Plaintiff did not allege controverting facts but merely alleged facts concerning her arrest and incarceration in the City of Phoenix jail. Judge Irwin Cantor granted summary judgment on 13 October 1970. Appeal is taken from said judgment.

On appeal we are asked to review the decision of the trial court in granting summary judgment as to each of the allegations in the complaint.

We are aware of the fact that there are numerous actions brought each year in this state against the Sheriff, his deputies, and the various counties. The State Supreme Court has never been called upon to determine whether a county is automatically liable for every tort committed by its deputies. The County exercises supervision of all county officers as provided by A.R.S. § 11--251, subsec. 1. Inasmuch as the Sheriff is a county officer under A.R.S. § 11--401 subsec. A, par. 1. the County exercises supervision of the official conduct of the Sheriff. However, in the instant case, the County, having no right of control over the Sheriff or his deputies in service of the writ of restitution, is not liable under the doctrine of Respondeat superior for the Sheriff's torts. 77 C.J.S. Respondeat Superior p. 319. In 57 Am.Jur. 2d, Municipal, etc., Tort Liability, Sec. 86 at pp. 97, 98, it is stated:

'When duties are imposed upon a county treasurer, or upon a board of county commissioners by law rather than by the county, the latter will not be responsible for their breach of duty or for their nonfeasance or misfeasance in relation to such duty. Furthermore, where the duties delegated to officers elected by public corporations are political or governmental, the relation of principal and agent does not exist and the maxim 'respondeat superior' does not govern.'

See also Moore v. Maricopa County, 11 Ariz.App. 505, 466 P.2d 56 (1970), wherein the Court of Appeals found no tort liability as to Maricopa County in the operation of a jail with the City of Tolleson for the reason that the County had no right to control. The motion for summary judgment was properly granted as to the County.

The next question for review is whether the writ of restitution was prematurely issued. A.R.S. § 12--1178, subsec. C reads as follows:

'No writ of restitution shall issue until the expiration of five days After the rendition of judgment.' (Emphasis supplied)

Rule 58(a), Rules of Civil Procedure, 16 A.R.S., as amended, provides:

'Entry. All judgments shall be in writing and signed by a judge or a court commissioner duly authorized to do so. The filing with the clerk of the judgment constitutes entry of such judgment, and the judgment is not effective before such entry, . . .'

Plaintiff argues that because the judgment was filed with the clerk's office on 21 May 1969 and the writ of restitution was issued and executed on 28 May 1969, the writ was issued on the fifth day after the judgment became effective under Civil Rule 58(a) and therefore was issued in violation of A.R.S. § 12--1178, subsec. C. Plaintiff includes in her time computation the omission of an intervening Saturday and Sunday as mandated by Civil Rule 6(a), Rules of Civil Procedure, 16 A.R.S.

We do not agree that the writ of restitution was issued prematurely.

There are several cases from the Arizona Supreme Court which make it clear that 'entry...