Leschorn v. Xericos, No. 1

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

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.

[121 Ariz. 78]

Page 371

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[121 Ariz. 79]

Page 372

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...