Leschorn v. Xericos

• Citation: 121 Ariz. 77,588 P.2d 370
• Decision Date: 07 December 1978
• Docket Number: CA-CIV,No. 1,1
• Parties: Paul A. LESCHORN, d/b/a Executive Suites, Appellant, v. George XERICOS and Charlotte Xericos, his wife, Appellees. 3548.
• Court: Court of Appeals of Arizona

Page 370

588 P.2d 370

121 Ariz. 77

Paul A. LESCHORN, d/b/a Executive Suites, Appellant, v. George XERICOS and Charlotte Xericos, his wife, Appellees.

No. 1 CA-CIV 3548.

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

Dec. 7, 1978.

Law Offices of Thomas Aranda, Jr. by Thomas Aranda, Jr., David M. Heller, John R. Baker, Phoenix, for appellant

Goldstein, Flynn & Mason, Ltd. by Pamela L. Kingsley, Philip T. Goldstein, David N. Ramras, Phoenix, for appellees.

OPINION

JACOBSON, Presiding Judge.

This case requires us to determine whether an attempted settlement by the parties of their landlord-tenant action resulted in an agreement in the nature of an accord and satisfaction which worked a discharge of the liabilities that were originally asserted by the plaintiff-appellant landlord in the action. For reasons hereinafter stated, we hold that the original controversy was not terminated and that the trial court accordingly erred in dismissing the complaint.

The appellant Leschorn initiated this action against appellees for damage to the apartment he had leased to them and for holdover rent. Appellees counterclaimed for their security deposit. Following considerable discovery, the case was set for trial on April 20, 1976. Prior to commencement of trial, appellees orally moved for dismissal of the complaint, based upon two letters and a release. The first letter is dated December 5, 1974, and reads as follows:

Dear Tom:

This is to confirm this morning's telephone conversation wherein we agreed to settle all outstanding claims which Paul Leschorn and Mr. and Mrs. Xericos may have against each other. This includes, but is not limited to, Cause No. C-298172 pending in the Maricopa County Superior Court and entitled "Paul A. Leschorn dba Executive Suites vs. George Xericos and Charlotte Xericos".

The agreement of settlement and compromise requires George Xericos to do the following:

1. Install the downstairs carpeting which Mr. Xericos previously removed from his apartment at the Executive Suites, in an apartment unit of Mr. Leschorn's choice at that apartment complex. It is understood that said carpeting was used by Mr. Xericos for approximately one year while in his apartment at the Executive Suites. It is further understood that the apartment chosen by Mr. Leschorn shall be the same size as Mr. Xerico's previous apartment.

2. Install the same (or if not available, similar) carpeting in the upstairs area of said apartment including the spiral staircase, bedroom, and den area. It shall not include, however, carpeting of the bathroom area.

3. Deliver the fireplace unit which Mr. Xericos previously removed from his apartment at the Executive Suites.

In consideration of the foregoing, Mr. Leschorn will execute a general release releasing Mr. and Mrs. Xericos from any and all claims which he may have against them, including, but not limited to, damages which he allegedly sustained by reason of holes in the walls and ceiling of the subject apartment, water damage, carpet damage, carpet pad damage, and any rent which is allegedly due and unpaid.

I enclose herewith a general release to be signed by Mr. Leschorn prior to the time Mr. Xericos undertakes his obligation under this agreement. Upon obtaining Mr. Leschorn's signature on the release, please call me and inform me that you have it in your possession and give me reasonable instructions as to the time and place for Mr. Xericos to perform under this settlement. Upon his completion of the tasks which he is to have done, you shall forward the executed general release to my office and you shall thereafter send me a stipulation and order for dismissal of the pending litigation, each side to bear its own costs.

If this accurately sets forth our settlement agreement, sign a copy of this letter, which is also enclosed, and return it to my office immediately.

Very truly yours,

s/ David N. Ramras

The second letter, dated February 7, 1975, reads as follows:

Dear Greg:

Pursuant to your request, this is to revise my December 5, 1974 letter to Tom Aranda which purported to confirm our settlement agreement. As I understand it, the only portion of that letter which you were troubled by was the paragraph numbered 2 and in that regard it should be altered to read:

"2. Install carpeting in the upstairs area of said apartment including the spiral staircase, bedroom, and den area. It shall not include, however, carpeting of the bathroom area. The carpeting referred to in this paragraph shall be the same carpeting of which a sample was furnished to Mr. Lyon earlier this week."

The balance of the December 5, 1974 letter sets forth the settlement agreement which we have agreed to and, thus, I ask that you please send me the executed General Release as soon as possible.

Very truly yours,

s/ David N. Ramras

Pursuant to the next-to-last paragraph of the letter of December 5, 1974, appellant executed a release which appellees also submitted in support of their motion to dismiss. The release is in conventional form. It states that it is given "for good and valuable consideration" and releases and discharges appellees from, Inter alia, all claims and causes of action.

Appellees' oral motion was granted by the trial judge. Thereafter, appellant made a written motion for reconsideration of the ruling. An affidavit of appellant's counsel is attached to the motion, the substance of which is to the effect that appellees did not perform their promise to carpet the upstairs with the specified type of carpeting.

Appellant contends that the accord reached, which is evidenced by the letters, is an accord executory. See generally 6 Corbin on Contracts §§ 1268-1275 (1962). Appellees claim a compromise and settlement which is both an accord And a satisfaction. See generally 6 Corbin on Contracts §§ 1276-1292 (1962). These concepts are the subject of the following statement of general principles in Owens v. Hunter, 91 Ariz. 7, 10, 368 P.2d 753, 755 (1962):

Accord and satisfaction is an affirmative defense to be pleaded, Ariz.R.Civ.P. rule 8(d), 16 A.R.S., and proved, Phillips v. County of Graham, 17 Ariz. 208, 214, 149 P. 755, 757-758 (1915). An agreement between the parties to the satisfaction of an existing claim by a future substituted performance is an accord executory. And it is generally presumed that actual performance and not the promise thereof constitutes the satisfaction. Williston, Contracts, § 1847 at 5205 (1938). When such substituted performance is rendered there is an accord and satisfaction which will bar an action on the original claim. On the other hand, if an accord is reached but the substituted performance never rendered by the debtor it is usually held that the creditor may sue on the original claim. Moreno v. Russell, 47 Ariz. 38, 53 P.2d 411 (1936); Howard v. Norton-Morgan Commercial Co., 11 Ariz. 158, 89 P. 541 (1907).

And in Poggi v. Kates, 115 Ariz. 157, 160, 564 P.2d 380, 383 (1977), our Supreme Court quoted the following passage from Aritex Land Co. v. Baker, 14 Ariz.App. 266, 482 P.2d 875 (1971) It appears from the record that the trial court was of the opinion that the settlement agreement was a mere...