North Star Development Corp. v. Wolfswinkel, 2
| Decision Date | 27 March 1985 |
| Docket Number | CA-CIV,No. 2,2 |
| Citation | 706 P.2d 732,146 Ariz. 406 |
| Parties | NORTH STAR DEVELOPMENT CORPORATION, Defendant/Appellant, v. Clifford L. WOLFSWINKEL and Eleanor M. Wolfswinkel, husband and wife, Defendants/Appellees. NORTH STAR DEVELOPMENT CORPORATION, Defendant/Appellant, v. Clifford L. WOLFSWINKEL and Eleanor M. Wolfswinkel, husband and wife, Defendants/Appellees, and B.B. Bonner, Jr., and Kaide Bonner, husband and wife; and George Nackard and Lenora Nackard, husband and wife, Plaintiffs/Appellees. 3985. |
| Court | Arizona Court of Appeals |
In order to decide the issues in this case, it is necessary to state the history of legal proceedings involving all the parties to this appeal. On March 14, 1972, Wolfswinkels brought suit against North Star for specific performance of, and against Bonner and Nackard (B/N) for interference with, a contract concerning the sale of the Tonto Natural Bridge. In a similar suit in Coconino County, B/N brought an action against North Star and Wolfswinkels to quiet title. The two were later consolidated into one cause. On July 25, 1974, the court ordered:
1. Specific performance and attorney's fees for the Wolfswinkels as against North Star.
2. Money damages for Wolfswinkels and North Star for interference with a contract as against B/N.
3. An equitable mortgage in favor of B/N.
4. Attorney's fees to North Star against B/N and reimbursement to North Star for attorney's fees paid to Wolfswinkels.
On September 17, 1974, B/N having filed a notice of appeal, the court fixed the amount of the supersedeas bond at $50,000, and on October 17, 1974, the parties filed a stipulation with the court which included an agreement by Wolfswinkels and North Star not to execute on the judgment until after a mandate from the Arizona Supreme Court had been received by the superior court. B/N agreed to pay mortgage payments on the property, property taxes, and to insure the property, and the parties agreed that so long as B/N complied with the agreement, there would be no execution on the judgment. The Arizona Court of Appeals affirmed (on the issue of waiver of jury trial) in Nackard v. Wolfswinkel, 116 Ariz. 348, 569 P.2d 290 (App.1977).
On December 16, 1977, B/N filed suit in Gila County against North Star and Wolfswinkels, among others, claiming defendants had no right or claim to Tonto Natural Bridge or that their claim was subordinate and inferior to B/N's. Both North Star and Wolfswinkels answered and counterclaimed.
This is an appeal by North Star from the Gila County Superior Court's February 26, 1981 order essentially reconfirming the judgment of July 25, 1974. It had been stayed because of a bankruptcy proceeding by North Star. North Star contends that the trial court's order as to Wolfswinkels is precluded because Wolfswinkels did not seek to enforce their 1974 judgment within five years as required by A.R.S. § 12-1551. We disagree.
I. THE FIVE-YEAR DORMANCY STATUTE IS TOLLED BY THE FILING OF A SUPERSEDEAS BOND WHICH STAYS EXECUTION OF THE JUDGMENT PENDING APPEAL.
A.R.S. § 12-1551 allows for enforcement of a judgment within five years after its entry, and beyond that time period it can only be revived by requisite affidavit or an action brought thereon within five years from the date of entry. After the five-year period has lapsed, an attempt to revive the judgment fails by any argument of equitable estoppel or by any showing of acknowledgment of the barred obligation. Chudzinski v. Chudzinski, 26 Ariz.App. 130, 546 P.2d 1139 (1976).
However, that period of limitations has been suspended where there is a stay of execution in effect, Harding v. Sutherlin, 120 Ariz. 193, 584 P.2d 1184 (App.1978), the reasoning being that the time period during which a party could not legally execute on the judgment would therefore be excluded from the time allowed for that. Id. at 196, 584 P.2d 1184. In Harding, the question presented was not one of revival beyond the five-year period but rather suspension of that limitation period completely until the stay was lifted.
Rule 62(d), Rules of Civil Procedure, 16 A.R.S., (abrogated effective January 1, 1978; see now, Rule 7(a), Rules of Civil Appellate Procedure, 17A A.R.S.), permitted an appellant to obtain a stay of execution effective upon filing the court-approved supersedeas bond. The effect of such a bond is to restrain both parties and the lower court from taking affirmative action to enforce the judgment or decree pending appeal. Anderson v. Pickrell, 115 Ariz. 589, 566 P.2d 1335 (1977).
On October 17, 1974, following a hearing and court order, North Star, B/N and Wolfswinkels filed a written stipulation with the Coconino County Superior Court setting the terms of a supersedeas bond and further agreeing not to execute on the judgment "until after the mandate from the Supreme Court of the State of Arizona ha[d] been received by the Clerk of the Superior Court affirming said judgment."
Since Wolfswinkels were prohibited contractually from executing on the judgment until September 27, 1977, when the supreme court denied rehearing on the appeal, the dormancy statute is tolled for that three-year time period, Harding, supra, which then gave Wolfswinkels until September 1982 to enforce the judgment. 1
On December 15, 1977, B/N filed a complaint in Gila County Superior Court to foreclose their judgment lien obtained in the Coconino County case. When Wolfswinkels answered and counterclaimed on June 30, 1978, they alleged the existence of the judgment, the contract and the escrow instructions and attached copies as exhibits. This pleading renewed the July 25, 1974 judgment thereby once again tolling the dormancy statute. It contained all of the essential allegations of a cross-claim for enforcement of the Coconino judgment even though Wolfswinkels did not label it a cross-claim until the superior court granted their motion to amend on November 14, 1980. The court construed the original pleading as it was intended in order to do substantial justice. Busy Bee Buffet v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957); Rule 8(g), Rules of Civil Procedure, 16 A.R.S. Because the pleading properly stated a cross-claim without being labeled as such, the November 14, 1980 amended answer related back to June 30, 1978. It arose out of the same transaction, the proper notice to the parties existed, and Wolfswinkels' failure to designate the pleading as a cross-claim was merely a mistake on their part. North Star had actual notice as a party to the court action and could not have suffered any prejudice by the amendment. Owen v. Superior Court of the State of Arizona, 133 Ariz. 75, 649 P.2d 278 (1982); Rule 15(c), Rules of Civil Procedure, 16 A.R.S.
II. THE TRIAL COURT ACTED WITHIN ITS JURISDICTION IN ORDERING THE INJUNCTION AGAINST NORTH STAR, IN GRANTING WOLFSWINKELS' MOTION FOR SUMMARY JUDGMENT, AND IN ENTERING THE AMENDED JUDGMENT ON FEBRUARY 26, 1981, RELATING TO MATTERS NOT FULLY ADJUDICATED BY THE JANUARY 13, 1981 JUDGMENT.
The language of the November 14, 1980 order was very specific in restraining certain persons associated with North Star from conveying security interests or effecting transfer of the property in any way. Although it was not necessary for the court to be specific in terms in order for the injunction to be valid, State v. Nettz, 114 Ariz. 296, 560 P.2d 814 (App.1977), it is evident from the order that the court was protecting the property pending final decision regarding each of the parties' interests. Rule 65(h), Rules of Civil Procedure, 16 A.R.S., which calls for reasons for the issuance and for specific terms, was therefore fully complied with by the court.
The court granted Wolfswinkels' motion for summary judgment on November 14, 1980, more than two years after North Star first received notice of Wolfswinkels' allegations. The record on appeal reflects over 600 pages of responsive pleadings and related discovery documents filed by all of the parties in the case. In addition, North Star filed specific responses to this particular motion for summary judgment on two occasions. Following the November 14, 1980 ruling, North Star filed five memoranda seeking reconsideration and was provided two opportunities for oral argument. Although North Star never moved for additional time to respond, the court by allowing memoranda and oral argument was more than generous regarding North Star's defenses.
On January 13, 1981, the court granted Wolfswinkels' motion for summary judgment for conveyance of the bridge by reason of the 1974...
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