Maciborski v. Chase Service Corp. of Arizona

• Decision Date: 30 March 1989
• Docket Number: No. 1,CA-CV,1
• Citation: 779 P.2d 1296,161 Ariz. 557
• Parties: William MACIBORSKI, Jr., the Personal Representative of the Estate of William Maciborski, Sr., deceased, Plaintiff-Appellee, v. CHASE SERVICE CORPORATION OF ARIZONA, an Arizona corporation, Defendant-Appellant. 88-112.
• Court: Arizona Court of Appeals

Page 1296

779 P.2d 1296

161 Ariz. 557

William MACIBORSKI, Jr., the Personal Representative of the Estate of William Maciborski, Sr., deceased, Plaintiff-Appellee, v. CHASE SERVICE CORPORATION OF ARIZONA, an Arizona corporation, Defendant-Appellant.

No. 1 CA-CV 88-112.

Court of Appeals of Arizona Division 1, Department B.

March 30, 1989.

Reconsideration Denied May 26, 1989.

Review Denied Oct. 24, 1989.

[161 Ariz. 558] Jennings, Strouss & Salmon by Glenn J. Carter and Jefferson L. Lankford, Phoenix, for defendant-appellant.

Glenn J. Gimbut and Hunt, Stanley, Hossler & Moore, Ltd. by Gerald W. Hunt, Yuma, for plaintiff-appellee.

OPINION

EUBANK, Judge.

The issue presented in this appeal is whether appellant Chase Service Corporation (Chase) served a notice of forfeiture upon appellee William Maciborski "at least twenty days prior to the effective date of the forfeiture" pursuant to A.R.S. § 33-743(A). This case requires us, among other things, to determine how a time period is to be computed when the words "at least" are used in a statute. The trial court granted the appellee summary judgment and Chase appeals from it.

FACTS AND PROCEDURAL HISTORY

William Maciborski, Sr. became the successor in interest to the purchasers of a parcel of property under an installment land sale contract executed in 1980. The seller of the property was Jean (Holmes) Bancroft. Payments were not made and at the seller's request, Chase, who was the servicing agent, issued a "notice of election to forfeit." William Maciborski, Sr. had died, and therefore the notice was mailed to William Maciborski, Jr., personal representative of the decedent's estate, on May 28, 1987. The notice stated that the buyer had failed to make both the 1986 and 1987 annual installment payments. The notice required that the buyer cure the default by paying the monies due "prior to five o'clock (5:00) p.m. on the 17th day of June, 1987," or his interest in the property would be forfeited. This notice was the statutory form notice set out in A.R.S. § 33-743(B).

On July 17, 1987, William Maciborski, Jr., as personal representative of his father's estate filed a complaint for declaratory relief, injunction, and reinstatement of the agreement of sale of real property, naming Jean Bancroft and Chase as defendants. In count one of the complaint, Maciborski sought a declaratory judgment that the proper notice for forfeiture had not been given and that notice would have to be served again before the property could be forfeited. In count two of the complaint, Maciborski asked that the seller be enjoined from transferring the real property and that the agreement of sale between the parties be reinstated. Maciborski alleged in this count not only that improper notice had been given, but also that the seller had entered into an agreement with Maciborski to the effect that no further payments would be required until the estate was closed.

Chase moved to dismiss the complaint against it on the basis that it had served proper notice as required by the statute. Bancroft filed a notice of joinder in Chase's motion to dismiss. Maciborski filed a cross-motion seeking summary judgment on his complaint solely on the grounds that proper notice of forfeiture had not been given. All of the parties requested attorney's fees.

The trial court denied the defendants' motions to dismiss and granted the plaintiff's motion for summary judgment. The trial court stated its reasoning in the order as follows:

The matter at issue is how many days are encompassed between a mailing at some hour on May 28, 1987 and the "close of business" on June 17, 1987 for purposes of the application of A.R.S. § 33-743(A). The Court finds that the notice must have given the Plaintiff until midnight, June 17, 1987, and is thus short seven hours.

There is, in this Court's mind, a considerable difference between procedural rules and substantive rights. To forfeit an interest in real property, one must strictly follow the rules set down for such a forfeiture.

The propriety of the forfeiture resting on the validity of this notice, that forfeiture must fail.

Therefore, there being no material issue of fact which is disputed, and upon those undisputed facts, the Plaintiff is entitled to judgment.

The trial court also ruled in the order that it would award attorney's fees to the plaintiff against Chase after it was provided with an appropriate affidavit regarding the attorney's fees incurred. Chase, alone, filed a notice of appeal from the trial court's order of summary judgment. The notice of appeal was filed before the trial court determined the amount of the attorney's fees award. Thereafter, the trial court declined to determine the amount of attorney's fees award, ruling that it had been divested of jurisdiction after the notice of appeal was filed.

JURISDICTION

As a preliminary matter, we will comment briefly on the contention made by Maciborski in his answering brief that this court lacks jurisdiction to consider this appeal because the judgment does not dispose of all claims and contains no language of finality pursuant to Rule 54(b), Arizona Rules of Civil Procedure. Maciborski points out that the matter of determining the amount of attorney's fees was still pending and that the claims contained in count two of his complaint had not been addressed. Maciborski suggests that the appeal is premature and should be dismissed pursuant to Pulaski v. Perkins, 127 Ariz. 216, 619 P.2d 488 (App.1980).

We note that after Maciborski filed his answering brief, he also raised these same arguments in a motion to dismiss the appeal. In response to the motion to dismiss, Chase cited to Trebilcox v. Brown & Bain, P.A., 133 Ariz. 588, 653 P.2d 45 (App.1982), which provides that a request for attorney's fees is not a separate claim, that the absence of a disposition of a request for attorney's fees does not preclude an otherwise final judgment from becoming final and appealable, and that the trial court loses jurisdiction to award attorney's fees after a notice of appeal is filed. Chase pointed out that Maciborski's claim in count two was merely an alternative backup theory which would never have to be decided since he won a total judgment on count one, stopping the forfeiture of his interest in the property. Chase also suggested that if Maciborski had wanted the judgment to spell out the relief different from that stated in the judgment, Maciborski should have provided the court with a proposed form of judgment, filed objections to the form of judgment, or moved to alter or amend the judgment under the provisions of the Arizona Rules of Civil Procedure. Chase argued that the failure to do any of these things on Maciborski's part did not prevent the judgment from becoming final.

After considering the motion to dismiss and the responsive pleadings, this court denied the motion to dismiss on August 16, 1988. ¹ Having determined by denying the motion to dismiss that the judgment is appealable, we now proceed to the issue presented in this appeal, whether timely notice of forfeiture was given.

TIMELINESS OF NOTICE

The statutory scheme providing for forfeiture and reinstatement of a purchaser's interest in installment land sale contracts is set forth in A.R.S. § 33-741 et seq. If a purchaser defaults by failing to pay monies due under the contract, and the requisite time period provided in A.R.S. § 33-742(D) has passed, the seller may elect to forfeit the purchaser's interest. A.R.S. § 33-743 governs the notice that must be provided before forfeiture can be declared, requiring service of notice upon interested parties including the purchaser "at least twenty days prior to the effective date of the forfeiture." The statute provides for the service to be made "either by delivery in person or by deposit in the United States mail, first class, postage prepaid...."

The undisputed facts in this case are that Chase served notice on Maciborski by mailing a notice of election to forfeit sometime on May 28, 1987. The notice required that Maciborski cure the default "prior to five o'clock (5:00) p.m. on the 17th day of June, 1987" to avoid forfeiture. The question presented is whether the mailing of notice on May 28, 1987, satisfied the twenty-day notice requirement.

It is clear that only nineteen days lie "between" May 28, the date that notice was mailed, and June 17, the date that forfeiture was to be declared if payment was not received by 5:00 p.m. that day. Therefore, twenty days notice was not given unless it is permissible to count one of the terminal days within the notice period. However, including either of the terminal days would not satisfy the notice requirement if it is determined that the statute requires that each day of the notice period be a full twenty-four-hour day. Presumably, Chase did not mail its notice precisely after midnight on May 27, and therefore its mailing of notice sometime on May 28 did not provide a full twenty-four-hour notice on that day. Similarly, at the other end, Maciborski was not given until midnight on June 17 to make payment, and therefore that day did not provide a full twenty-four-hour notice.

The trial court in this case concluded that the statute requiring notice "at least twenty days prior to the effective date of the forfeiture" should be interpreted as requiring a notice period consisting of twenty full twenty-four-hour days. The trial court concluded that the notice mailed on May 28 would have been timely only if it had given Maciborski until midnight on June 17, 1987, instead of until 5:00 p.m. to make payment. The trial court effectively determined that in computing the notice period required under A.R.S. § 33-743, both terminal days must be excluded.

Chase argues that the trial court erred in its method of counting the time period and in reaching the legal conclusion that timely notice had not been provided. Chase argues that under applicable Arizona law, the time...