McCutchen v. Hill

• Decision Date: 10 December 1985
• Docket Number: No. 18212-PR,18212-PR
• Citation: 710 P.2d 1056,147 Ariz. 401
• Parties: Melodie L. McCUTCHEN aka Melodie L. York, Plaintiff/Appellant, v. Jerry HILL, Sheriff of Maricopa County, and Deputy Gregory Williams, Deputy Sheriff of Maricopa County; Transamerica Insurance Company, a California corporation, Defendants/Appellees.
• Court: Arizona Supreme Court

Page 1056

710 P.2d 1056

147 Ariz. 401

Melodie L. McCUTCHEN aka Melodie L. York, Plaintiff/Appellant, v. Jerry HILL, Sheriff of Maricopa County, and Deputy Gregory Williams, Deputy Sheriff of Maricopa County; Transamerica Insurance Company, a California corporation, Defendants/Appellees.

No. 18212-PR.

Supreme Court of Arizona, In Banc.

Dec. 10, 1985.

Mahoney, Lehman, Rood & Rempe, P.C., by John Rood, Phoenix, for plaintiff/appellant

Roderick MacMillan, Deputy Maricopa County Atty., Phoenix, for defendants/appellees.

FELDMAN, Justice.

We have accepted review of this matter primarily to interpret an ambiguity in Rule 59, Ariz.R.Civ.P., 16 A.R.S. Review was granted pursuant to Rule 23, Ariz.R.Civ.App.P., 17A A.R.S. We have jurisdiction under Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

The important facts are not in dispute. On March 5, 1973, a decree dissolving the marriage of Mr. and Mrs. York was entered by the Maricopa County Superior Court. Mr. York was ordered to pay $100 per month child support. However, shortly after the order was entered he moved to Texas and ceased making regular payments. On September 6, 1979, Mrs. McCutchen (petitioner), the former Mrs. York, filed an application in the superior court for the issuance of a writ of ne exeat. The application was based on information that Mr. York would soon be coming to Phoenix to receive an inheritance of $5,000. At that time, Mr. York was at least $2,700 in arrears on his support obligations. The writ which issued required the sheriff to apprehend Mr. York and required that York post a $3,000 bond in order to obtain his release prior to a show cause hearing scheduled for October 1, 1979.

On Friday, September 11, Mr. York, accompanied by his second wife, was taken into custody in Phoenix on the writ of ne exeat. He had the inheritance check in his possession. Mr. York was brought before Judge Rozar in the custody of Deputy Sheriff Gregory Williams. York explained to Judge Rozar that he did not have cash with which to post the $3,000 bond. By agreement between York and petitioner's counsel, the bond was reduced to $2,000. It was late Friday afternoon and, therefore, likely that York would have to spend The judge then signed the order of release and gave it to the deputy. Williams returned York to the main jail, gave the release order to the detention officers and proceeded on with his duties. Shortly thereafter, without paying the cash bond, York was released by the detention officers pursuant to the release order, which explicitly stated that the cash bond had already been paid. Deputy Williams contributed to this unhappy event by doing exactly the opposite of what he had undertaken--he failed to hold the release order and also failed to tell the detention officers about the oral condition "attached" by the judge. At trial, Williams stated that in his many years as a deputy, he had never seen a written order varied by an oral condition. He said that he had looked at the release order signed by the judge but had not read it carefully; he had assumed that the conditions for the release were on the written order. In fact, they were not because the order was a standard short form which read:

the weekend in the Maricopa County Jail because the writ would prevent his release until the inheritance check was cashed and bond posted. In an attempt to keep York out of jail for the weekend, the new Mrs. York was advised to go cash the inheritance check. The judge proposed in the interim to sign a release order before the bond was posted but have the deputy hold the order until the cash was actually deposited with the sheriff. This pragmatic solution allowed the court to recess for the weekend, the bond to be posted after the recess and Mr. York to be released without having to reside in jail for the weekend. The judge stated: "I'll sign a release now and you [York] won't have to come back if you [Deputy Williams] hold it [the release]." The deputy responded by saying, "That's fine."

IT IS HEREBY ORDERED that the defendant in the above-entitled cause be released from custody, having furnished bond in the sum of $2,000.

The judge's signature followed.

As might be expected, Mr. York failed to appear at the October 1 show cause hearing. At that time Judge Pickrell signed an order holding Mr. York in contempt for failing to make child support payments. Judgment was entered against York in the amount of $2,700, plus interest and attorneys' fees. The judgment allowed a credit for the $2,000 cash bond which the new judge assumed had been posted in connection with York's release. It was at this time that petitioner's counsel first discovered that the $2,000 bond had never been posted. The judgment was later modified by deleting the paragraph allowing the credit for $2,000.

In 1980, petitioner filed a negligence action seeking $2,000 in damages from the Maricopa County Sheriff, Deputy Williams and the sheriff's surety. The case was tried to the court, without a jury. The trial judge found "that there was a duty owed to plaintiff by defendant and that there was a breach of said duty." However, the court held that petitioner had failed to prove damage and entered judgment for the defendants. Petitioner filed a motion for a new trial pursuant to Rule 59(a)(8), Ariz.R.Civ.P., 16 A.R.S. and moved in the alternative to allow additional evidence pursuant to Rule 59(b). The trial court denied the motion and petitioner appealed the judgment. The defendants cross-appealed from the finding that Deputy Williams had been negligent, arguing that the deputy had not duty to the petitioner. The court of appeals affirmed the judgment entered in favor of the defendants on the basis of a lack of duty and never reached the Rule 59 issue. McCutchen v. Hill, Memo. Dec., # 1 CA-CIV 6945, filed April 11, 1985.

NEGLIGENCE

Duty is not an issue in this case. Deputy Williams had no duty to act contrary to the court's order. The sheriff and his deputies, officers of the court, have a duty to obey all lawful orders of the court. Merrill v. Phelps, 52 Ariz. 526, 531-33, 84 P.2d 74, 77 (1938); A.R.S. § 11-441(A)(4)(1977). This was clearly recognized by the trial judge whose minute entry Officer Williams owed no duty to plaintiff, or to do anything other than transport Mr. York to the jail with Judge Rozar's release order until he answered "that's fine" in response to Judge Rozar's statement....

of October 13 properly indicated that the "key to the duty issue" was the officer's undertaking to follow the judge's oral orders. The trial court found that the sheriff had indicated he had heard the instructions and would follow them and that the officer, as a reasonable person, should have understood those instructions and could have followed them. The court continued:

The trial court held that Deputy Williams was negligent for having misunderstood the judge or having acted contrary to the judge's instructions.

The court of appeals held, however, that the sheriff's undertaking was "insufficient as a matter of law to create a duty in contradiction of the express written order." This would indeed be a difficult issue to resolve, but it is not the issue presented. Judge Rozar did not order the sheriff to do something in contravention of his written order. The judge asked the sheriff to hold the order, and not file it, thereby postponing its effectiveness until the bond was posted. This the sheriff undertook to do. We believe the trial judge was correct in finding a duty was thereby assumed.

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if ... (b) the harm is suffered because of the other's reliance upon the undertaking.

Restatement (Second) of Torts, § 323 (1965). The deputy's personal agreement to hold the release order until the money was paid gave rise to "the duty to use proper care in the performance of the task" assumed. W. Prosser and W. Keeton, LAW OF TORTS § 56 at 379-80 (5th ed. 1984). In holding a sheriff liable for the acts of his deputies we have said, "If the act from which the injury resulted was an official act ... the sheriff is answerable.... [I]f he is acting under color of his office ... he and his sureties will be bound by such acts." Chaudoin v. Fuller, 67 Ariz. 144, 149-50, 192 P.2d 243, 247 (1948) quoting Abbott v. Cooper, 218 Cal. 425, 23 P.2d 1027, 1030 (1933) and Johnson v. Williams, 111 Ky. 289, 63 S.W. 759, 760 (1901).

There is a legitimate dispute over whether Deputy Williams should have known or understood what the court was asking of him. Whether a reasonable man in Deputy Williams' position would have or should have understood the court's instructions is a matter for the factfinder. The trial judge found against defendants on that issue and the record supports its finding of negligence. We believe the court of appeals erred with respect to this issue.

OPENING OF THE JUDGMENT

It seems quite apparent that the release of Mr. York without bond damaged petitioner by exactly the amount she claimed in damages. Nevertheless, the trial judge found in favor of defendant on the damage issue. The judgment against York and the transcript of the ne exeat hearing were admitted in evidence at the trial; therefore petitioner did establish that as of September 11, 1979 the arrearages exceeded $2,000. The trial judge apparently thought that petitioner had the burden to negate the possibility that the errant husband had paid the arrearages in the time between his erroneous release from custody on September 11, 1979 and the commencement of the trial.

After entry of the order finding for defendants on the issue of damages plaintiff filed motions for a new trial under Rule 59(a) and to open the judgment to...