Pankratz v. Willis, CA-CIV

• Decision Date: 04 June 1987
• Docket Number: CA-CIV
• Citation: 744 P.2d 1182,155 Ariz. 8
• Parties: , 56 USLW 2322 David P. PANKRATZ, Plaintiff Counter-defendant-Appellee, v. Carl D. WILLIS and Anne Willis, husband and wife, Defendants Counter-claimants-Appellants. 18519.
• Court: Arizona Court of Appeals

Page 1182

744 P.2d 1182

155 Ariz. 8, 56 USLW 2322

David P. PANKRATZ, Plaintiff Counter-defendant-Appellee, v. Carl D. WILLIS and Anne Willis, husband and wife, Defendants Counter-claimants-Appellants.

1 CA-CIV 8519.

Court of Appeals of Arizona Division 1, Department A.

June 4, 1987.

Reconsideration Denied June 19, 1987.

Review Denied Oct. 27, 1987.

[155 Ariz. 9] Helm & Kyle, Ltd. by Margaret R. Tinsley, Tempe, for plaintiff counterdefendant-appellee.

Miller, Mark & Simon, Ltd. by Leonard J. Mark, Loren Molever, Phoenix, for defendants counterclaimants-appellants.

OPINION

RICHARD M. DAVIS, Judge Pro Tem.

This is an action for intentional infliction of emotional distress pursuant to § 46 of the Restatement (Second) of Torts (1965). ¹ The plaintiff-appellee David Pankratz is the former son-in-law of defendants-appellants Carl and Anne Willis, whose daughter Laraine, the former spouse of appellee, elected to disappear with their child. Plaintiff in essence charged that the defendants, acting intentionally, made the disappearance possible. Laraine, a named defendant, was never personally served with process and did not appear.

Judgment was entered on a jury verdict for plaintiff assessing damages at $125,000. The grandparents' appeal challenges the judgment on 17 grounds, and three additional questions are presented in their effort to revive a defeated counterclaim also charging infliction of distress, as well as abuse of process. While several of the points raised by appellants on the main claim require close analysis, we find no reversible error.

FACTS

We state the facts as we must view them, in the light most favorable to upholding the verdict and judgment. McFarlin v. Hall, 127 Ariz. 220, 224, 619 P.2d 729, 733 (1980); Venerias v. Johnson, 127 Ariz. 496, 499, 622 P.2d 55, 58 (App.1980).

Laraine Willis, the only child of Carl and Anne, was married to appellee in 1979. Christa Pankratz was born of the marriage. Shortly after Christa's birth, and notwithstanding frictions which were becoming evident in the marriage, appellants provided $30,000 for the Pankratzes to purchase a home in 1980. Carl Willis took back a note from his daughter, which provided for repayment if the marriage was dissolved.

Marital discord increased, and Laraine filed a petition for dissolution in 1981. The dissolution proceedings were long and acrimonious, the major issue being custody of Christa. The decree entered in December, 1982, granted legal custody to Laraine with a defined schedule of visitation rights for David. Tensions between the former spouses over Christa continued after the decree.

According to appellants, on or about April 14, 1983, they drove Laraine and Christa to the Disneyland area in metropolitan Los Angeles. That night, at a motel, Anne Willis suffered another of a series of recurring diarrhea attacks related to gall bladder surgery which she had undergone some seven or eight months earlier. As a result of that and the inability to obtain Anne's prescription drug in California (she took none with her), the Willises drove back to Arizona the next day, leaving Laraine and Christa at the motel near Disneyland. One or two days later Laraine called her parents in Phoenix and told them that she and Christa were not coming home. According to all of the testimony, the only person known to have seen Laraine since is an American lawyer named Francis Peel, practicing in Geneva, Switzerland, who met with Laraine in May, 1983. Laraine was 36 years old at the time of her disappearance; Christa was four and a half.

Appellee's action is based upon the theory that Laraine was markedly dependent, financially and otherwise, upon her parents and that appellants enabled Laraine to disappear with Christa, something she could not have accomplished otherwise. Appellee's case is built upon circumstantial evidence, as follows.

Laraine was a graduate of Arizona State University and later studied music and operatic singing in San Francisco for one year, Paris for one year, and Geneva for two years. This was done wholly at her parents' expense. Over the years Laraine had done some professional singing, some music and kindergarten instruction, and secretarial or bookkeeping work, but she had never wholly supported herself. The secretarial and bookkeeping work was her most recent occupation and was done part- time for a Dr. Sage, a friend of the Willises and Anne Willis' employer.

Appellants paid Laraine's attorney fees in the divorce proceedings. After the separation, appellants, residents of Prescott since Carl's retirement from Garrett Corporation in 1981, vacated an apartment they had previously rented in Phoenix and stayed at Laraine's house when Anne Willis' work required her to be in Phoenix.

Laraine did not have her own checking account. She placed all of her funds, including the support payments from appellee, in her parents' checking account, and Carl Willis would give her cash when she requested money. There was no showing that she had other significant resources.

The telephone records of both Laraine's phone in Phoenix and appellants' phone in Prescott were introduced into evidence. Notable were four telephone calls from appellants' Prescott home to Laraine's home in Phoenix on March 30, 1983, and one call by Laraine to Geneva, Switzerland, on the same day. Also notable were two calls from appellants' number in Prescott to Laraine's number in Phoenix on March 16, 1983, the day before Laraine applied for a copy of a birth certificate for Christa.

On April 6, 1983, Laraine executed a general, "durable" power of attorney in favor of Carl Willis. The document had been originally drawn by Laraine's lawyer in March. Carl Willis testified that the power was executed in his favor so that he could negotiate and complete the sale of Laraine's residence, which was too big for her and Christa. The power, however, was without limitation and accordingly could be and was used by Carl Willis to attend to post-disappearance loose ends such as filing Laraine's income tax return for 1983 and cashing refund checks payable to her.

The trip to California took place the day after appellee's last visit with Christa and five days before the next scheduled visit. It was undocumented, and the Willises could not remember the name of the motel where they stayed or the town or specific area in which it was located. Certain other details of the trip were clearly recalled. Each traveler took only one suitcase, according to the Willises. Carl Willis testified that he assumed that Laraine had money to get home because she did not ask him for any.

On April 19, 1983, three or four days after the Willises returned to Arizona, appellee came to Laraine's residence to pick up Christa for his scheduled visitation. He was met by Carl, who told him that Laraine had gone to California and had not yet indicated when she would be back. The jury could have found that Laraine called her parents as early as April 16 or 17 and told them that she and Christa would not be coming home. Appellee testified that Carl was unusually tense, hostile, and belligerent at this meeting. This was in contrast to Carl's testimony that he was "devastated" to the point of distraction by Laraine's suddenly communicated decision. Appellee called or saw Carl approximately five times over the next few days. Appellee testified that Carl always told him essentially the same thing, that Laraine was in California and had not yet indicated when she would come home. David testified that Carl never told him that Laraine had told her father that she and Christa were not going to be coming home at all.

In the weeks and months that followed, appellants paid all Laraine's obligations, gave away Laraine's dog, had her phone disconnected, packed and moved into storage Christa's and Laraine's personal effects, and eventually sold her house and car. Carl filed Laraine's 1983 income tax return and received her 1982 and 1983 tax refunds.

Appellants testified that Laraine called them a total of approximately seven times after she disappeared. None of the calls was at all informative as to where she and Christa were or as to other significant vital information. Appellants further testified that they had not directly or indirectly provided Laraine with any funds since her departure. Appellee has not shown otherwise. ² Appellants' position in the litigation is that Laraine made a personal decision which they felt obliged to respect and that they needed to go on with their lives, however sadly, in respect to their only daughter and grandchild. Appellants changed their own phone number to an unlisted number in July, 1983. They testified that they had not received correspondence from Laraine and had no means of reaching her.

Appellee took various measures in a vigorous attempt to find Christa. He attempted through counsel to depose appellants in post-dissolution proceedings in early May, 1983. The depositions were finally taken on July 25. Appellee's counsel in these proceedings testified that he was met with what he thought were inordinate requests by appellants' lawyers to delay taking the depositions.

Appellee also engaged private detectives in California and Prescott. The detective in Prescott testified that he did extensive surveillance on appellants' home and concluded that no one was living there for extensive periods of time in the summer of 1983. Appellants disputed this testimony.

Appellee is a corporate pilot for Garrett Corporation, a position he obtained after the marriage. While his formal job performance reviews did not suffer after Laraine's and Christa's disappearance and his quest to find them, his superiors testified that there was, in fact, some deterioration in his performance. One fellow pilot gave this testimony:

Well, as a pilot David has always been very professional and an excellent pilot. Since this disappearance, of course, this is all he has thought about and worked...