Pitzen's Wig Villa v. Pruitt

• Decision Date: 04 February 1970
• Docket Number: No. 1,CA-CIV,1
• Citation: 11 Ariz.App. 332,464 P.2d 652
• Parties: PITZEN'S WIG VILLA, an Arizona corporation, Appellant, v. Milton D. PRUITT and Terry Pruitt, Appellees. 958.
• Court: Arizona Court of Appeals

Page 652

464 P.2d 652

11 Ariz.App. 332

PITZEN'S WIG VILLA, an Arizona corporation, Appellant, v. Milton D. PRUITT and Terry Pruitt, Appellees.

No. 1 CA-CIV 958.

Court of Appeals of Arizona, Division 1, Department B.

Feb. 4, 1970.

Richard R. Brennan, for William P. Lutfy (deceased), Phoenix, for appellant.

Lewis, Roca, Beauchamp & Linton, by Joseph E. McGarry, Peter D. Baird, Phoenix, for appellees.

JACOBSON, Judge.

The liability of a landlord for acts allegedly resulting in the failure of his tenant's business is asserted in this appeal from a judgment entered in the Superior Court of Maricopa County.

Plaintiff-appellant, PITZEN'S WIG VILLA, brought suit against its landlord, defendants-appellees MILTON D. PRUITT and TERRY PRUITT, his wife, alleging 'that plaintiff was put out of business by the acts * * * of the defendants' and seeking $150,000 actual and $75,000 punitive damages. The complaint also alleged conversion. A partial summary judgment was entered in favor of the defendants as to the claim of conversion. Three months later a second Motion for Summary Judgment was granted in favor of the defendants on the remainder of the claim. Plaintiff appeals from the latter judgment only.

Although both Mr. Pruitt and his wife were named as defendants in this action, all the acts complained of were done by Mr. Pruitt and for convenience the defendants will hereinafter be referred to in the singular.

Plaintiff initially contends that it was not afforded sufficient opportunity to present controverting affidavits or a written response to defendant's second motion for summary judgment and therefore it was error for the trial court to grant the motion. We do not agree.

Defendant's motion for summary judgment was served and filed on June 28, 1968, and a hearing was set for July 22, 1968. A pretrial conference had previously been scheduled for July 8, 1968, exactly ten days after service of the motion for summary judgment. Oral arguments on the motion for summary judgment were heard at the pretrial conference without objection by either counsel.

Rule 56(c) of the Arizona Rules of Civil Procedure, 16 A.R.S. (Supp.1969--70) requires a minimum interval of ten days between the date the motion is served and the date of the hearing and permits the adverse party to serve opposing affidavits anytime 'prior to the day of (the) hearing.' Here, the date of the pretrial conference satisfied the ten-day mandate of Rule 56(c). We deem plaintiff's failure to object during oral argument on the motion for summary judgment a waiver of any error of the trial court in considering arguments on this motion prior to the date originally scheduled. Moreover, inasmuch as plaintiff never requested that the court grant additional time within which to submit a written response or controverting affidavits, it cannot now urge error based upon inadequate opportunity to oppose defendant's motion. Cf. Milam v. Milam, 101 Ariz. 323, 419 P.2d 502 (1966). Defendant, on the other hand, urges that plaintiff's failure to file controverting affidavits makes the granting of the motion mandatory on the trial court. With this contention we also do not agree. Commercial Engineering Corp. v. Madison Chevrolet, Inc., 10 Ariz.App. 529, 460 P.2d 200 (1969). The trial court is required to consider not only the supporting and controverting affidavits, but also the pleadings and any depositions, interrogatories and answers thereto and admissions on file which are brought to the court's attention by the parties. Arizona Rules of Civil Procedure, Rule 56(c), 16 A.R.S. (Supp.1969--70). The record in this case contains several depositions and a controverting affidavit to an earlier motion for summary judgment. If this record discloses a genuine issue as to any material fact then summary judgment was inappropriately granted by the trial court. Transamerica Insurance Co. v. Valley National Bank, 11 Ariz.App. 121, 462 P.2d 814, (filed December 23, 1969).

It is axiomatic that on an appeal from the granting of a motion for summary judgment the record will be viewed in a light most favorable to the party opposing the summary judgment and without a weighing of the conflicting evidence. Elerick v. Rocklin, 102 Ariz. 78, 425 P.2d 103 (1967). It is equally true that uncontroverted evidence favorable to the movant, and from which only one inference can be drawn, will be presumed to be true provided such evidence would be admissible at a trial on the merits. Executive Towers v. Leonard, 7 Ariz.App. 331, 439 P.2d 303 (1968); Patterson v. Patterson, 102 Ariz. 410, 432 P.2d 143 (1967); 3 Barron & Holtzoff, Federal Practice and Procedure, sec. 1237 (Rules ed., Wright rev. 1958). The above principles are observed in the following statement of facts.

The plaintiff is an Arizona corporation whose sole directors and managing officers are Mr. and Mrs. Sylvester Pitzen. On November 1, 1964, plaintiff, through its president, Mr. Pitzen, entered into a three-year renewable lease with the defendant for a building from which to conduct its business. The lease contained the following provision:

'Should there at any time be any default by Lessee * * * Lessors may, at Lessors' sole option, declare this lease terminated * * *; provided, however, Lessee shall not be held to be in default in * * * payment of rent * * * until ten days after receipt of written notice of such default. * * *' (Emphasis added.)

Two and a half years later Mr. and Mrs. Pitzen, having consulted an attorney, decided to file personal and corporate bankruptcy. In late April, 1967, they discharged the corporation's last employee, locked the premises, and for all practical purposes suspended the business operations of Pitzen's Wig Villa. Sometime thereafter the defendant found Pitzen's Wig Villa closed during business hours and called plaintiff's attorney whose phone number had been placed just inside the front window by the Pitzens. Being...