Ghyselinck v. Buchanan

• Decision Date: 01 October 1970
• Docket Number: No. 1,CA-CIV,1
• Citation: 474 P.2d 844,13 Ariz.App. 125
• Parties: Gilbert GHYSELINCK and Dolores C. Ghyselinck, his wife, Appellants, v. Robert E. BUCHANAN and Mildred W. Buchanan, his wife, Robert C. Hamilton and Halo Lenore Hamilton, his wife, and Robert E. Buchanan and Robert C. Hamilton, dba Tubobs Just Good Food, Appellees. 1233.
• Court: Arizona Court of Appeals

Page 844

474 P.2d 844

13 Ariz.App. 125

Gilbert GHYSELINCK and Dolores C. Ghyselinck, his wife, Appellants, v. Robert E. BUCHANAN and Mildred W. Buchanan, his wife, Robert C. Hamilton and Halo Lenore Hamilton, his wife, and Robert E. Buchanan and Robert C. Hamilton, dba Tubobs Just Good Food, Appellees.

No. 1 CA-CIV 1233.

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

Oct. 1, 1970.

Rawlins, Ellis, Burrus & Kiewit, by Chester J. Peterson, Phoenix, and Kenneth J. Lincoln, Flagstaff, for appellants.

Babbitt, Garbarino & Meyers, by Joseph R. Babbitt, Flagstaff, for appellees.

JACOBSON, Judge.

In this action for reformation of a lease, plaintiffs-appellants appeal from a judgment entered in favor of defendants-appellees and from an order denying their motion for a new trial based on newly discovered evidence.

We note initially that appellees have failed to file an answering brief in this court. Such failure has been held by our Supreme Court to be a confession of error when the opening brief has presented issues that are at least debatable. Tiller v. Tiller, 98 Ariz. 156, 402 P.2d 573 (1965); Siemers v. Randall, 94 Ariz. 302, 383 P.2d 753 (1963); Barrett v. Hiney, 94 Ariz. 133, 382 P.2d 240 (1963); Nelson v. Nelson, 91 Ariz. 215, 370 P.2d 952 (1962); State v. Sanders, 85 Ariz. 217, 335 P.2d 616 (1959). This court has held this rule to be permissive rather than mandatory in its nature. Counterman v. Counterman, 6 Ariz.App. 454, 433 P.2d 307 (1967); Blech v. Blech, 6 Ariz.App. 131, 430 P.2d 710 (1967); Hoffman v. Hoffman, 4 Ariz.App. 83, 417 P.2d 717 (1966). See Ariz. S.Ct. (Civ.) R. 7(a)(2), 17 A.R.S. Therefore, in this case, we prefer to look to the merits of appellants' appeal.

The reformation sought by plaintiffs concerned a lease agreement entered into between the plaintiffs, as lessor, and defendants, as lessee, of a restaurant and cocktail lounge located at the Western Hills Motel situated in Flagstaff, Arizona. The parties hereto, pursuant to an oral understanding concerning the terms of the lease, went to an attorney located in Flagstaff who was apprised of the intended terms and who later reduced the oral terms to a writing. None of the parties hereto reviewed the lease prior to it being executed. Paragraph 2 of the written lease provided for monthly rentals at the rate of 'ten per cent (10%) of the gross profit.' Plaintiffs urged in the trial court and now urge on appeal that the parties intended and orally agreed that the monthly rental should be 10% Of the gross income, and that the word 'profit' had been inserted through the mistake of the attorney who had authored the lease. In support of this argument the plaintiffs at the trial established that the defendants had paid the first three months' rent on the basis of 10% Of the gross income, and thereafter refused to pay on this basis, paying only 10% Of the gross profit.

At the time of trial, the plaintiffs caused a subpoena duces tecum to be issued directing the defendants to produce the cancelled checks used to pay the first few months' rental and the manila envelopes on which the first few months' rental was figured, but allege they were told that no cancelled checks and manila envelopes for the first few months existed and none were produced. The Coconino Superior Court found for the defendants and entered its judgment accordingly. Subsequently, plaintiffs filed a motion for new trial on the ground of newly discovered evidence, pursuant to Rule 59(a) of the Arizona Rules of Civil Procedure 16 A.R.S. The 'newly discovered evidence' consisted of two types: (1) testimonial evidence (recanted testimony of defendant Robert Hamilton) and (2) documentary evidence (consisting of the subpoenaed checks and manila envelopes). The motion for new trial disclosed that one of the defendants, Robert C. Hamilton, came to the office of plaintiffs' counsel, bringing with him the cancelled checks and manila envelopes. At this him, defendant Robert Hamilton made a statement to the effect that he had come into possession of the various bookkeeping entries which now lead him to believe that some of his testimony at the time of trial was mistaken. The trial court denied plaintiffs' motion for a new trial.

We turn first to plaintiffs' contention that the trial court erred in denying their motion for a new trial on the ground of newly discovered evidence. In order to be granted a new trial on the ground of newly discovered evidence, the evidence must be material and incapable of discovery or production at the trial. Ariz.R.Civ.P. 59(a)(4); Schneider v. City of Phoenix, 9 Ariz.App. 356, 452 P.2d 521 (1969). As our Supreme Court stated in Sabin v. Rauch, 75 Ariz. 275, 255 P.2d 206 (1953), Followed in Lawless v. St. Paul Fire & Marine Ins. Co., 100 Ariz. 392, 415 P.2d 97 (1966):

'It must appear that the purported evidence is such as would probably change the result should the new trial be granted, and it must also appear that such evidence could not have been discovered before the trial by the exercise of due diligence. 39 Am.Jur. 165 New Trial, sections 158 and 160. The affidavit must show not only that, the defendant did not know of the evidence relied upon but must also show that diligence was used in an effort to discover the same. Sharpensteen v. Sanguinetti, 33 Ariz. 110, 262 P. 609. 39 Am.Jur. New Trial, section 163.' 75 Ariz. at 281, 255 P.2d at 209.

It is difficult to see how the proffered cancelled checks and manila envelopes can be characterized as newly discovered evidence. Although a subpoena duces tecum did issue...