Grande v. Jennings, 1 CA–CV 11–0148.

• Decision Date: 31 May 2012
• Docket Number: No. 1 CA–CV 11–0148.,1 CA–CV 11–0148.
• Citation: 635 Ariz. Adv. Rep. 19,278 P.3d 1287,229 Ariz. 584
• Parties: Karen Spann GRANDE, as Personal Representative of the Estate of Robert A. Spann, Deceased, Petitioner/Cross–Respondent/Appellee, v. Sarina JENNINGS, a single woman; Clinton McCallum, a single man, Respondents/Cross–Claimants/Appellants.
• Court: Arizona Court of Appeals

229 Ariz. 584

278 P.3d 1287

635 Ariz. Adv. Rep. 19

Karen Spann GRANDE, as Personal Representative of the Estate of Robert A. Spann, Deceased, Petitioner/Cross–Respondent/Appellee,

v.Sarina JENNINGS, a single woman; Clinton McCallum, a single man, Respondents/Cross–Claimants/Appellants.

No. 1 CA–CV 11–0148.

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

May 31, 2012.

Polsinelli Shughart, P.C. by Andrew S. Jacob, Gregorio M. Garcia, Phoenix, Attorneys for Respondents/Cross–Claimants/Appellants.

Lewis and Roca LLP by George L. Paul, Phoenix, Attorneys for Petitioner/Cross–Respondent/Appellee.

OPINION

PORTLEY, Judge.

[229 Ariz. 586]¶ 1 This case asks us to resolve who owns the money found in the walls of a Paradise Valley home: the estate of the home's former owner or the couple who owned the home at the time of the discovery. The new homeowners appeal the summary judgment granted to the estate, and claim that the funds were abandoned when the home was sold “as is.” For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Robert A. Spann lived in his Paradise Valley home until he passed away in 2001. His daughter, Karen Spann Grande (“Grande”), became the personal representative of his estate. She and her sister, Kim Spann, took charge of the house and, among other things, had some repairs made to the home.¹

¶ 3 They also looked for valuables their father may have left or hidden. They knew from experience that he had hidden gold, cash, and other valuables in unusual places in other homes. Over the course of seven years, they found stocks and bonds, as well as hundreds of military-style green ammunition cans hidden throughout the house, some of which contained gold or cash.

¶ 4 The house was sold “as is” to Sarina Jennings and Clinton McCallum (“Jennings/McCallum”) in September 2008. They hired Randy Bueghly and his company, Trinidad Builders, Inc., to remodel the dilapidated home. Shortly after the work began, Rafael Cuen, a Trinidad employee, discovered two ammunition cans full of cash in the kitchen wall, went looking, and found two more cash-filled ammo cans inside the framing of an upstairs bathroom.

¶ 5 After Cuen reported the find to his boss, Bueghly took the four ammo cans but did not tell the new owners about the find, and tried to secret the cans. Cuen, however, eventually told the new owners about the discovery and the police were called. The police ultimately took control of $500,000, which Bueghly had kept in a floor safe in his home.

¶ 6 Jennings/McCallum sued Bueghly for fraudulent misrepresentation, conversion, and a declaration that Bueghly had no right to the money, and Bueghly later filed a counterclaim for a declaration that he was entitled to the found funds. In the meantime, Grande filed a petition in probate court on behalf of the estate to recover the money. The two cases were consolidated in June 2009.

¶ 7 The estate filed a motion for summary judgment and argued that Jennings/McCallum had no claim to the money found in the home. After briefing, the motion was granted. The trial court found that there were “no questions of material fact as to whether Robert A. Spann abandoned or mislaid the currency found in the house purchased by [Jennings/McCallum]” and that the estate did not waive its rights because “ [the personal representative] claimed the property as soon as she became aware of it.” Final judgment pursuant to Arizona Rule of Civil Procedure 54(b) was entered on January 12, 2011, leading to this appeal.²

DISCUSSION

¶ 8 Jennings/McCallum argue that summary judgment was inappropriate because there was a genuine issue of material fact as to whether the estate had abandoned its rights to the found money. Specifically, they assert that a jury could have found that Grande “consciously ignored” the possibility that additional large sums of money could be hidden in the home because she did not locate all of the cash that her father had withdrawn from the bank and did not systematically search all potential hiding spots; therefore, the estate abandoned any rights it had when the house was sold. As a result, Jennings/McCallum argue, they are entitled to the discovered funds.

A.

¶ 9 We review a summary judgment de novo to determine “whether any genuine issues of material fact exist and whether the trial court properly applied the law.” Brookover v. Roberts Enters., Inc., 215 Ariz. 52, 55, ¶ 8, 156 P.3d 1157, 1160 (App.2007) (citing Eller Media Co. v. City of Tucson, 198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App.2000)). We confine our review to the record presented to the trial court when it made its ruling.³GM Dev. Corp. v. Cmty. Am. Mortg. Corp., 165 Ariz. 1, 4, 795 P.2d 827, 830 (App.1990) (citations omitted). And, we view the facts “in the light most favorable to [Jennings/McCallum], the party against whom summary judgment was entered.” Espinoza v. Schulenburg, 212 Ariz. 215, 216–17, ¶ 6, 129 P.3d 937, 938–39 (2006) (citing Duncan v. Scottsdale Med. Imaging, Ltd., 205 Ariz. 306, 308, ¶ 2, 70 P.3d 435, 437 (2003)). Summary judgment is appropriate “if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.” Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

B.

¶ 10 Although elementary school children like to say “finders keepers,” the common law generally categorizes found property in one of four ways.⁴E.g., Benjamin v. Lindner Aviation, Inc., 534 N.W.2d 400, 406 (Iowa 1995) (citing Ritz v. Selma United Methodist Church, 467 N.W.2d 266, 269 (Iowa 1991)). Found property can be mislaid, lost, abandoned, or treasure trove. Id. (citing Ritz, 467 N.W.2d at 269);1 Am.Jur.2d Abandoned, Lost, and Unclaimed Property § 12 (2012). Property is “mislaid” if the owner intentionally places it in a certain place and later forgets about it. Terry v. Lock, 343 Ark. 452, 37 S.W.3d 202, 207 (2001). “Lost” property includes property the owner unintentionally parts with through either carelessness or neglect. Id. at 206. “ Abandoned” property has been thrown away, or was voluntarily forsaken by its owner. Id. (citations omitted). Property is considered “treasure trove” if it is verifiably antiquated and has been “concealed [for] so long as to indicate that the owner is probably dead or unknown.” 1 Am.Jur.2d Abandoned, Lost, and Unclaimed Property § 16 (2012).

¶ 11 A finder's rights depend on how a court classifies the found property. Terry, 37 S.W.3d at 206 (citation omitted); Ritz, 467 N.W.2d at 268–69;Hill v. Schrunk, 207 Or. 71, 292 P.2d 141, 142 (1956). In characterizing the property, a court should consider all of the particular facts and circumstances of the case. Terry, 37 S.W.3d at 206 (citing Schley v. Couch, 155 Tex. 195, 284 S.W.2d 333, 336 (1955)); Corliss, 34 P.3d at 1103 (citing 1 Am.Jur.2d Abandoned, Lost, and Unclaimed Property §§ 1–14 (1994)) (distinctions between categories of found property are determined by “an analysis of the facts and circumstances in an effort to divine the intent of the true owner at the time he or she parted with the property”). Under the common law, “the finder of lost or abandoned property and treasure trove acquires a right to possess the property against the entire world but the rightful owner regardless of the place of finding.” Corliss, 34 P.3d at 1104 (citing Terry, 37 S.W.3d at 206). A finder of mislaid property, however, must turn the property over to the premises owner, “who has the duty to safeguard the property for the true owner.” Id. (citing Terry, 37 S.W.3d at 206);see also Benjamin, 534 N.W.2d at 406 (citing Ritz, 467 N.W.2d at 269) (“The right of possession of mislaid property belongs to the owner of the premises upon which the property is found, as against all persons other than the true owner.”).

¶ 12 Significantly, among the various categories of found property, “only lost property necessarily involves an element of involuntariness.” Corliss, 34 P.3d at 1104 (citation omitted). The remaining categories entail intentional and voluntary acts by the rightful owner in depositing property in a place where someone else eventually discovers it. Id. For example, the Iowa Supreme Court has stated that “[m]islaid property is voluntarily put in a certain place by the owner who then overlooks or forgets where the property is,” and that one who finds mislaid property does not necessarily attain any rights to it because possession “belongs to the owner of the premises upon which the property is found,” absent a claim by the true owner. Benjamin, 534 N.W.2d at 406 (citation omitted). In Benjamin, the court determined that packets of money found in a sealed panel of a wing during an inspection of a repossessed airplane were mislaid property because the money was intentionally placed there by one of the two prior owners. Id. at 403, 407–08.

¶ 13 Arizona follows the common law. In Strawberry Water Co. v. Paulsen, we stated that in order to abandon personal property, one must voluntarily and intentionally give up a known right. 220 Ariz. 401, 408, ¶ 16, 207 P.3d 654, 661 (App.2008) (citation omitted); see also1 Am.Jur.2d Abandoned, lost, and Unclaimed Property § 3 (2012) (“Abandonment ... is the owner's relinquishment of a right with the intention to forsake and desert it.”). Abandonment is “a virtual throwing away [of property] without regard as to who may take over or carry on.” 1 Am.Jur.2d Abandoned, Lost, and Unclaimed Property § 3 (footnote omitted). In fact:

While personal property of all kinds may be abandoned, the property must be of such a character as to make it clear that it was voluntarily abandoned by the owner. In this connection, it has been said that people do not normally abandon their money; and, accordingly, that found money will not be considered as abandoned, but as lost or mislaid property.

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