King v. Uhlmann

• Citation: 103 Ariz. 136,437 P.2d 928
• Decision Date: 07 February 1968
• Docket Number: Nos. 7418,7423,s. 7418
• Parties: Roy H. KING and George Ellis, Appellants, v. Ernest UHLMANN and Richard Peil, Jr., and Arizona Title Guarantee & Trust Co., Appellees. Ernest UHLMANN, Appellant, v. George ELLIS, Appellee.
• Court: Supreme Court of Arizona

Page 928

437 P.2d 928

103 Ariz. 136

Roy H. KING and George Ellis, Appellants, v. Ernest UHLMANN and Richard Peil, Jr., and Arizona Title Guarantee & Trust Co., Appellees.

Ernest UHLMANN, Appellant, v. George ELLIS, Appellee.

Nos. 7418, 7423.

Supreme Court of Arizona, In Banc.

Feb. 7, 1968.

Rehearing Denied March 12, 1968.

John E. Madden, John S. Schaper, Phoenix, for appellants King and Ellis and appellee Ellis.

Snell & Wilmer, by Mark Wilmer, Phoenix, for appellee and appellant, Uhlmann.

Johnson & Shaw, by Marvin Johnson, Phoenix, for appellee, Richard Peil, Jr.

Perry, Coulter & Head, by A. R. Perry, Phoenix, for appellee, Arizona Title Guarantee & Trust Co.

McFARLAND, Chief Justice:

This is a case in which an action was brought by George Ellis as plaintiff against Ernest A. Uhlmann, Tracey Gaffey, and Richard Peil, Jr., as defendants, for an adjudication of the rights in certain real property. The superior court held the title to the property, the sale of which was negotiated by Ernest Uhlmann, to be subject to a constructive trust, and that since the date of the transaction in 1956 defendant Ernest Uhlmann and his wife Billie Uhlmann have held an undivided one-half interest in the premises for the benefit of plaintiff George Ellis, subject to a lien in favor of Ernest Uhlmann in the sum of $10,000. Defendant Uhlmann appealed.

Roy King, as plaintiff, brought a separate action against Uhlmann, Peil, and Arizona Title Guarantee & Trust Co. as deedholder-defendant. The two actions were consolidated. The court rendered judgment against King, and he failed to perfect his appeal.

Uhlmann first contends that the trial court did not have jurisdiction because the case had been filed and tried under a court system existing prior to the amendment of Article VI of the Arizona Constitution, A.R.S. The action was brought in 1956, but no judgment was rendered until after the amendment of Article VI. Defendant contends that the repeal of Article VI of the Arizona Constitution in 1960 and the enactment of the new Article VI abolished the superior court in which the action was pending and established a new superior court. He asserts that the omission of a savings clause in the new Article VI resulted in the complete inability of the new superior court to continue the handling of the case; therefore, his motion to dismiss for lack of jurisdiction should have been sustained. The cases cited to support his position are not applicable.

The correct rule governing the instant case is stated in 82 C.J.S. Statutes § 435, at page 1010:

'The repeal of a statute does not operate to impair or otherwise affect rights which have been vested or accrued while the statute was in force. This rule is applicable alike to rights acquired under contracts and to rights of action to recover damages for torts. Where a new statute continues in force provisions of an old statute, although in form it repeals them at the moment of its passage, a right of action created by the old statute is not thereby destroyed.'

An extensive analysis supporting this position is set forth in 77 A.L.R.2d 336, in connection with the repeal and re-enactment of a statute, but the same rule would apply to the repeal and re-enactment of a constitutional provision.

'If an action is brought upon a cause of action, * * * which depends upon the continued existence of a statute, the action is not abated by the repeal and re-enactment of the statute pending the trial. * * *' 77 A.L.R.2d at 345

Other cases supporting the rule are Jessee v. De Shong (1907); Tex.Civ.App., 105 S.W. 1011; Wayne v. Bureau of Private Investigators and Adjusters, 201 Cal.App.2d 427, 20 Cal.Rptr. 194.

The provisions of a repealed act, which are re-enacted, continue in force without interruption, and all rights previously incurred are preserved and may be enforced. 77 A.L.R.2d 336, 345; Middleton v. Taber (1896), 46 S.Ct. 337, 24 S.E. 282. If a statute creates a public office, the repeal of the statute, accompanied by the re-enactment of the substance of it, does not abolish the office and substitute a new one for it; the effect is to continue the old one in force. 77 A.L.R.2d 336, 371; Allgood v. Sloss-Sheffield Steel & Iron Co. (1916), 196 Ala. 500, 71 So. 724; Watts v. State (1926), 21 Ala.App. 516, 109 So. 762.

The situation in the instant case is even stronger. The constitutional amendment adopted was to create an intermediate court of appeals, and at the same time reorganize and integrate the whole judicial structure. The amendment provided:

'* * * The continued existence of any office heretofore legally established or held shall not be abolished or repealed by the adoption of this article. The statutes and rules relating to the authority, jurisdiction, * * * in force at the time of the adoption of this article and not inconsistent herewith, shall, so far as applicable, apply to and govern such courts, * * *' Ariz.Const., Art. VI, § 35 (1960) There is even another reason to hold that there was no break in the continuity of the jurisdiction of the superior court. A.R.S. §§ 12-123 and 124 provide that the superior court shall have such jurisdiction as is conferred upon it by the Constitution. This statute, on the books prior to the commencement of this action, remains unchanged to this day, and provides additional continuity, in case it should be needed.

We hold that the superior court, prior to the constitutional amendment, and as it has existed since that amendment, are one and the same and that there has been no hiatus in its jurisdiction. All that was accomplished by the amendment was a reorganization and the creation of the court of appeals.

Ernest Uhlmann next contends that: (1) there is insufficient or no evidence to support the findings of the trial court and its subsequent judgment, and (2) the parol-evidence rule and the statute of frauds were violated.

Disposing of these questions requires a summary of the evidence. Roy King became acquainted with George Ellis when a mutual friend suggested that they get together in order that King might possibly assist Ellis in straightening out Ellis's financial affairs. King was not a resident of Arizona, but he often stopped in Phoenix when flying to the west coast on business, and he and Ellis did transact some business. In 1954, Ellis showed King a forty-acre piece of property near the intersection of Bell and Scottsdale Roads in Maricopa County, and informed King that it might be purchased for a reasonable sum. King contracted to purchase the property from the Osbornes for a sale price of $12,000 in February 1954. King testified that Ellis had negotiated the deal with the Osbornes and also that he expected Ellis to keep his eye on the property for development possibilities. King executed an agreement between him and Ellis which provided that in the event of a sale of the forty acres, King would split on an equal-division basis any profits over the $12,000 purchase-price figure. King also invested some money in a cantaloupe crop which was raised on some property which Ellis had, and this venture was a failure, resulting in an $8,000 loss to King.

At an undisclosed later date, the agreement was orally modified so that King would recover $20,000 off the top of any sale before the profits would be split. This adjustment was made to allow King to recover the money he had lost in the cantaloupe venture.

Ellis had interests in large quantities of adjacent property in the Bell and Scottsdale Roads area, and in order to assist Ellis agreements were drawn up proposing the development of these properties. Uhlmann, Gaffey, Peil, and other parties' names appear in these transactions. During the negotiations leading to these agreements, Ellis placed confidence in the other parties and made a complete disclosure of his financial holdings. Although the forty acres which is the subject of this suit was not included in the property under the development agreements, defendants admit that Ellis told them of his one-half interest in this property. These development agreements failed because of inability to acquire the necessary financing.

The evidence in this case shows that throughout the financial dealings and arrangements, Ellis placed great faith and confidence in the defendants. The evidence further shows that Peil handled the transaction for Uhlmann in first finding the deal, in later doing the correspondence, and in drawing up the instruments involved in the conveyance from King to Uhlmann. Uhlmann admitted in his deposition that Peil was acting for him.

After the development agreements failed because of the lack of financing, it was decided that if Ellis had an interest of record in the forty acres, he then would be able to acquire some funds by borrowing against this interest. Pursuing this possibility, on or about February 28, 1956, Ellis called King and informed him of the idea, and then introduced Peil to King over the telephone. King testified he told both Peil and Ellis that if it would help Ellis he would take $20,000 and step out of the picture. Peil himself stated on the stand that the substance of the agreement was that Ellis had a one-half interest, but King would be willing to forego any profit and would step out for $20,000 if it would help Ellis. Pursuant to this telephone conversation Peil prepared certain documents concerning the forty acres and mailed them to King for him and his wife to execute. Uhlmann was also contacted by Peil about acquiring an interest in the property. The documents Peil mailed to King were a quit-claim deed from King and his wife as grantors of an undivided one-half interest in the forty acres to Ellis and his wife as grantees for a consideration of ten dollars and a purchase-option agreement for the remaining undivided one-half interest in the property. King did not execute these documents, but sent Peil a letter dated March 3, 1956, wherein he stated he did not want to be placed in a...