Park Central Development Co. v. Roberts Dry Goods, Inc.
| Decision Date | 01 December 1969 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 11 Ariz.App. 58,461 P.2d 702 |
| Parties | PARK CENTRAL DEVELOPMENT CO., an Arizona corporation, Appellant, v. ROBERTS DRY GOODS, INC., an Arizona corporation and Roberts Bros., an Oregon coirporation, dba Diamond's, Appellees. 984. |
| Court | Arizona Court of Appeals |
Gordon B. Hutchison, Phoenix, for appellant.
Ryley, Carlock & Ralston, by John C. Ellinwood, Phoenix, for appellees.
The defendant-appellee Roberts Brothers operates a retail department store in Maricopa County, Arizona, under the name of 'Diamond's'. On or about April 10, 1956 the plaintiff-appellant and defendant, Roberts Dry Goods, Inc., as a lessor and lessee respectively, executed a lease of a store in the Park Central Shopping Center, Phoenix, Arizona.
Under the terms of the lease, in addition to the fixed minimum guaranteed rents, the defendant is obligated to pay to the plaintiff an annual percentage rent based on the gross sales as defined in the lease. The pertinent provisions of the lease are as follows:
'4. The term 'gross sales' as used herein shall be deemed to mean and include the aggregate gross amount received from the sales of merchandise, and charges for services performed, for which charge is made by Lessee, and by any other person, firm or corporation selling merchandise or performing services of any kind in, upon or from any part of the demised premises, or as a department of Lessee's business, or as a consessionaire, licensee or subtenant of Lessee, whether for cash or credit but there shall be excluded therefrom the following: Any fixed rental received by Lessee from its subtenants or concessionaires; refunds, credits or allowances to customers. * * *.'
The parties stipulated as follows: That in connection with its retail business, Roberts Brothers uses the Sperry and Hutchinson Company cooperative cash discount system, or, what is commonly known as S & H Green Stamps. This trading stamp system is maintained under a contract with S & H. Roberts Brothers pays for the use of the stamps on the basis of $25.00 per 10,000 stamps, or the sum of 1/4 cent for each stamp. The green stamps are furnished to Roberts Brothers which in turn issue them to its customers. The stamps are issued to the defendants' customers in connection with the purchase of all kinds of merchandise, except liquor, on the basis of one stamp for each ten cents purchased.
Under the trading stamp system the defendants issue S & H Green Stamps to those customers who pay cash at the time of purchase of merchandise and who take the receipt for such purchase to a special stamp window in the store to request the issuance of stamps to them based on the amount of their purchase. Approximately 15 per cent of the customers who are entitled to be issued the green stamps do not ask for them and, therefore, do not obtain them. Also, the defendants mail monthly statements to their credit customers, which statements set forth the dates and amounts due. If these credit customers make payment according to the terms specified in their monthly statements, the defendants, as a matter of course, mail green stamps to them based upon the amount of the payment made. If payment is made in person at the store by the credit customer on or before the due date shown on his monthly statement, such customer can go to the special stamp window and be issued green stamps, at his request, based upon the amount of payment shown on his receipt.
The defendants do not redeem the green stamps and do not operate a redemption center. S & H redeems the green stamps at any of its redemption stores in the Phoenix area or elsewhere. Redemption is made by exchanging the stamps for goods or merchandise in accordance with the redemption catalogues issued by S & H.
The question posed is whether or not money spent by the appelees for S & H Green Stamps constitutes 'refunds, credits or allowances to customers' within the meaning of the lease. The lower court, in denying judgment to appellant, made findings of fact and found, among other facts, that:
'* * *
8. The issuance of S & H Green Stamps by Roberts Bros. to its customers is a discount for cash payment or for prompt payment within credit terms extended by Roberts Bros. to its customers.
9. The issuance of S & H Green Stamps by Roberts Bros. to its customers constitutes 'allowances to customers'.'
A certified public accountant opined on behalf of the plaintiff-appellant that S & H Green Stamps do not constitute a 'refund, credit or allowance to customers' and that the 'weight of theory is in the direction of treating it as a selling expense.' He further testified that the terms 'cash discount' and 'discount for cash' are synonymous.
The appellees also called a certified public accountant as a witness. He testified that the trading stamps did constitute a 'refund credit or allowance to customers.' This witness and the president of the appellees testified that the giving of trading stamps tended to improve cash collections of the company thereby reducing bookkeeping costs, collection costs, and bad debt costs. The said president also testified that the trading stamps constituted a merchandising strategy enabling appellees to capture a large share of the department store market.
An advertising expert called by the appellees, on cross-examination and in answer to the question as to whether or not he would classify S & H Green Stamps as a sales promotion device, answered:
(Emphasis added)
Appellees' certified public accountant, when asked by what other means there can be a discount for cash, answered:
'Well, by credit to buyers' account by merchandise, by gift certificate, by trading stamps--perhaps, by jawbreakers or licorice sticks.'
Appellees also presented several 'expert' witnesses who testified that the S & H Green Stamps did not constitute 'advertising' because the names of the appellees did not appear on the stamps nor on the S & H signs on the premises.
It is axiomatic that the appellate court will not disturb the findings of fact of the trial court unless they are clearly erroneous. Tuab Mineral Corporation v. Anderson, 3 Ariz.App. 512, 415 P.2d 910 (1966); 16 A.R.S., Rules of Civil Procedure, Rule 52(a). However, the 'unless clearly erroneous doctrine' applies only to the appellate review of findings of fact. It does not apply to the trial court's conclusions of law nor...
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...entire record is left with the definite and firm conviction that a mistake has been committed.'" Park Cent. Dev. Co. v. Roberts Dry Goods, Inc., 11 Ariz. App. 58, 60, 461 P.2d 702, 704 (1969) (quoting Merryweather v. Pendleton, 91 Ariz. 334, 338, 372 P.2d 335, 338 (1962)). It is with these ......
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...Ariz.App. 105, 467 P.2d 945 (1970). We are not bound by the trial court's conclusions of law. Park Central Development Company v. Roberts Dry Goods, Inc., 11 Ariz.App. 58, 461 P.2d 702 (1969). With the foregoing in mind, we first turn to the general law pertaining to adverse possession. The......
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