Pepsi-Cola Metropolitan Bottling Co., Inc. v. Romley
Citation | 578 P.2d 994,118 Ariz. 565 |
Decision Date | 27 January 1978 |
Docket Number | PEPSI-COLA,No. 1,CA-CIV,1 |
Parties | METROPOLITAN BOTTLING COMPANY, INC., a New Jersey Corporation, Appellant, v. Elias M. ROMLEY, Appellee. 3401. |
Court | Court of Appeals of Arizona |
The main issue on the merits of this appeal is whether the trial court properly allowed parol evidence to be introduced to explain a "condemnation" clause contained in a lease between appellant, Pepsi-Cola Metropolitan Bottling Company (Pepsi- Cola) as lessee and appellee, Elias M. Romley (Romley) as lessor.
Although this issue arose out of a condemnation action brought by the State of Arizona, because of the proceedings in the trial court, the condemnor was not an active party litigant in the trial court and does not appear on appeal.
On June 17, 1972, the State of Arizona commenced this action to condemn several lots located in the central industrial district, together with the improvements situated on that property. The parcel involved lies on the east side of the Black Canyon Freeway on the northeast corner of Colter Street and the east access road of the freeway in Phoenix, Arizona. The parcel was owned by Romley and was leased by him to Pepsi-Cola.
Prior to the commencement of the condemnation proceedings, Romley and the State of Arizona agreed upon the fair market value of the property and improvements, which value included the leasehold interest, if any, of Pepsi-Cola. This amount was deposited into court and the state obtained immediate possession of the property.
Subsequently, Romley and Pepsi-Cola stipulated that the amount agreed upon between Romley and the state included the value of Pepsi-Cola's leasehold interest, if any; that the amount of that leasehold interest would not exceed $387,920.00; that the balance of any monies paid by the state could be paid to Romley and various mortgage holders; and that the action between Romley and Pepsi-Cola concerning the money deposited with the court would be divided for trial purposes into two issues: (1) the extent of the interest of Pepsi-Cola under its lease with Romley; and (2) the valuation of that interest.
The parties further stipulated that the state would not participate in the trial of this action other than to prepare and present to the court the Judgment and Final Order of Condemnation.
After condemning the property, the State of Arizona paid to Pepsi-Cola certain relocation expenses to compensate it for removing its personal property and equipment from the leased premises. The state and Pepsi-Cola specifically agreed that this payment was not compensation for any damages as a result of the condemnation of the leasehold interest.
On the trial of the first issue, the trial court determined that under the terms of its lease, Pepsi-Cola was entitled to receive for condemnation of its leasehold interest, damages based upon the unamortized cost to Pepsi-Cola of its improvements made to the leased property in 1966. The trial court specifically found that Pepsi-Cola was not entitled to damages based upon an amount by which the economic rent as of June 19, 1972 exceeded the contract rent of the leased premises reduced to present value. These determinations were made the subject of a written order signed by the trial judge on July 30, 1975.
Following entry of the July 30, 1975 order, the parties stipulated to waive a jury trial as to the valuation of the interest determined by the trial court and further stipulated that based upon the measure of damages imposed by the trial court, the value of Pepsi-Cola's unamortized costs of improvement was $46,000.00. Based upon this stipulation, the trial court entered its judgment on October 6, 1975 and Pepsi-Cola appealed on December 1, 1975.
Before setting out the facts underlying the lease between the parties, it is necessary to dispose of two procedural issues raised by Romley concerning our jurisdiction to hear this appeal.
Romley first contends that the July 30, 1975 order which determined the extent and measure of Pepsi-Cola's damages was an appealable interlocutory judgment under A.R.S. § 12-2101(G), and thus failure to appeal that judgment within 60 days precludes this court from considering the propriety of that order. A.R.S. § 12-2101 provides that an appeal may be taken:
We need not determine whether substantively the July 30, 1975 order falls within the definition of A.R.S. § 12-2101(G) as we feel our recent opinion in Cook v. Cook, 26 Ariz.App. 163, 547 P.2d 15 (1976) controls the result we must reach in this case. In Cook, we stated:
(emphasis added) Id. at 168, 547 P.2d at 20.
The trial court's order of July 30, 1975, contained no language which would indicate that this order was "final." Under the rationale of Cook, the order was therefore not appealable. Pepsi-Cola's timely appeal from the final judgment of October 6, 1975, properly placed before us the propriety of all prior non-appealable orders, including the order of July 30, 1975. A.R.S. § 12-2102; Cf. Wells v. Tanner Bros. Contracting Co., 103 Ariz. 217, 439 P.2d 489 (1968). We therefore have jurisdiction to consider the merits of the July 30, 1975 order.
Romley also urges that the bond posted by Pepsi-Cola on appeal was fatally defective. This contention was the subject of a motion to dismiss during the pendency of this appeal, which motion we denied. We do not feel it necessary to reconsider that disposition. For the reasons stated in our order denying the motion to dismiss, we reject Romley's contention that the bond was defective so as to prohibit our entertaining jurisdiction of this appeal. 1
The facts surrounding the controversy between Romley and Pepsi-Cola are that on September 28, 1975, Romley and Pepsi-Cola 2 entered into a lease agreement for 25 years for a portion of the property subsequently condemned by the State of Arizona. It is tacitly agreed that at that time neither party was aware of any condemnation action being instituted in the foreseeable future. However, that lease contained the following provision:
In 1964, Pepsi-Cola desired to increase the size of its bottling plant located on the leased premises and to that end a new lease was entered into expanding the leased premises. This new lease was executed on August 27, 1964 at which time the 1955 lease agreement was cancelled. Although there were various language differences between the 1955 and 1964 leases, the leases were identical insofar as the "condemnation clause" was concerned. The trial court found that at the time the 1964 lease was executed, the parties were aware that in the foreseeable future the Papago Freeway would be constructed which would result in the taking by condemnation of a part or all of the leased premises.
At the time of trial, Romley, over objection, was allowed to testify that at the time he and general counsel for Pepsi-Cola were negotiating the terms for the new 1964 lease, those parties read the 1955 condemnation clause and agreed that the correct interpretation of that clause was that in the event all of the property were condemned, that the entire award for the value of the leased premises would be paid to Romley and that Pepsi-Cola would have no interest in such an award. Romley further testified that in the interest of fairness, it was...
To continue reading
Request your trial-
Utah Dep't of Transp. v. Kmart Corp.
......6 Bodell Const. Co. v. Robbins, 2009 UT 52, ¶ 16, 215 P.3d 933. 7 ... upon condemnation, Fibreglas Fabricators, Inc. v. Kylberg , 799 P.2d 371, 375 (Colo. 1990) ... clauses and allocation clauses); Pepsi-Cola Metro. Bottling Co. v. Romley , 118 Ariz. 565, ......
-
Dept. of Transp. v. M & T Ent., 4435.
...... 452, 455 (Ct.App.2008); see also Friarsgate, Inc. v. First Fed. Sav. & Loan Ass'n of South ... Ward v. West Oil Co., Inc., 379 S.C. 225, 665 S.E.2d 618 ... pay for such use and occupancy."); Pepsi-Cola Metro. Bottling Co., Inc. v. Romley, 118 Ariz. ......
-
State ex rel. Miller v. Gannett Outdoor Co. of Arizona, Inc., 1
...... Another Arizona case lending support to our holding is Pepsi-Cola Metropolitan Bottling Co. v. Romley, 118 Ariz. 565, 578 P.2d 994 ......
-
State ex rel. Montgomery v. Comm'r Colleen Mathis
...... Dreamland Villa Cmty. Club, Inc. v. Raimey, 224 Ariz. 42, 46, ¶ 16, 226 P.3d ... it was intended to have.” McElhaney Cattle Co. v. Smith, 132 Ariz. 286, 290, 645 P.2d 801, 805 ... See Pepsi–Cola Metro. Bottling Co. v. Romley, 118 Ariz. 565, 568, 578 P.2d 994, ......