Greenwell v. Spellman, 10749

• Decision Date: 03 December 1973
• Docket Number: No. 10749,10749
• Parties: Don GREENWELL and Jane Doe Greenwell, his wife, Appellants, v. Dennis W. SPELLMAN and Catherine T. Spellman, his wife, Appellees.
• Court: Arizona Supreme Court

Page 328

516 P.2d 328

110 Ariz. 192

Don GREENWELL and Jane Doe Greenwell, his wife, Appellants, v. Dennis W. SPELLMAN and Catherine T. Spellman, his wife, Appellees.

No. 10749.

Supreme Court of Arizona, In Division.

Dec. 3, 1973.

Westover, Keddie, Choules, Shadle & Bowen by Ted B. Bowen, Yuma, for appellants.

Ralph F. Brandt, Yuma, for appellees.

JOLOHAN, Justice.

This appeal was brought by Don Greenwell and his wife, hereinafter referred to as defendants, from a judgment in favor of Dennis W. Spellman and Catherine T. Spellman, hereinafter referred to as plaintiffs, in a quiet title action to certain property in Yuma County, Arizona.

The property involved is located north of Parker, Arizona. Plaintiffs are the owners of Lot 9 in Rivers Bend Subdivision while defendants are the owners of Lot 8 in the same subdivision. Both properties abut the Colorado River on the west side and both are divided by a north-south roadway.

From 1952 to 1959, Lot 9 was owned by Norman Johnson. The defendants purchased Lot 8 in 1952, and the following year they built a concrete wall on the northern side of the west portion of their lot. A conversation between the two lot owners took place as to whether or not this wall encroached on Lot 9, but apparently the matter was not pursued.

In 1959, Lot 9 was purchased by Inez M. Sweringen and Leslie Rae Shoemake, and they in turn sold the lot to the plaintiffs. In 1966, the year of plaintiffs' purchase, defendants constructed a cement slab, 10 feet by 45 feet, on the east portion of Lot 8, approximately in line with the concrete wall on the west portion. The plaintiffs immediately had a survey made on Lot 9 and determined that parts of both the concrete wall and cement slab were inside their property line. Plaintiffs had a chain link fence constructed to mark the boundary line between the two lots. The fence was subsequently torn down by the defendants and thereafter this action was initiated.

Plaintiffs sought to quiet title to Lot 9 as shown by their survey. The defendants filed a counterclaim alleging ownership of the property south of the concrete wall and in a line extending east from the northern edge of the wall to the eastern boundary of Lot 9 by reason of adverse possession.

The trial of the case commenced January 25, 1968, and plaintiffs presented their case. Since the defendants were unable to be present in person, the trial was continued until March 6, 1968. At that time, defendants presented their case and both sides rested.

On May 20, 1968, judgment was ordered (for plaintiffs) fixing the boundary between the lots as the concrete wall and an imaginary line extending from the wall to the western and eastern boundaries of the properties. The defendants submitted a form of judgment which was objected to by plaintiffs, and they asked for a rehearing. A motion for mistrial or rehearing was subsequently filed by the plaintiffs which also included a request for new trial.

After argument was heard by the trial court, on July 28, 1969 the court made an amended order for judgment and then a final judgment on December 22, 1969, fixing the boundary to Lot 9 as the property north of the concrete wall for the length of its east-west extension and along the short north-south extension, then east on the platted boundary line (S 89 59 W) to its eastern boundary.

Defendants filed a motion asking for a mistrial, rehearing, or new trial. The motion for rehearing was granted and the judgment set aside. The order of the court was '. . . that defendants' motion for re-hearing to supplement the testimony of record may be granted. . . .'

On March 6, 1970, the rehearing was held and testimony heard. At the beginning of the rehearing, the defendants made a request for findings of fact and conclusions of law. This was objected to as not timely made.

On June 1, 1970 the court, in its order for judgment, denied defendants' request for findings and conclusions, holding it was made only at a supplemental hearing and not at the commencement of trial. It then reinstated the amended judgment. The court filed its final judgment June 10, 1970.

The first determination to be made is whether the ruling of the trial court denying defendants' request for findings of fact and conclusions of law was proper. If the request was timely the trial judge would be required to make findings.

Rele 52(a), 16 A.R.S. of the Arizona Rules of Civil Procedure provides in part:

'In all actions tried upon the facts without a jury or with an advisory jury the court, If requested before trial, shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.' (Emphasis added.)

The requirements of the rule have been held to be mandatory on the trial court. Keystone Copper Mining Co. v. Miller, 63 Ariz. 544, 164 P.2d 603 (1945).

The vital part of the rule, for the purposes of this case, is that portion which reads, 'if requested before trial.' It is the defendants' contention that there were two trials, separated by a year and five months. They argue that the motion made prior to the testimony given at this second 'trial' was thus made before trial and therefore seasonably made and mandatory. Prior to the amendment of Rule 52(a) a request for findings was timely if made prior to judgment. Valley National Bank v. Shumway, 63 Ariz. 490, 163 P.2d 676 (1945). As amended the rule now requires that the request be made prior to trial. Myers-Leiber Sign Co. v. Weirich, 2 Ariz.App. 534, 537, 410 P.2d 491 (1966). The critical issue for determination is whether there were two trials or only one.

Twice the defendants moved for a rehearing, once coupled...