Schaneman v. Dickerson

• Decision Date: 17 June 1971
• Docket Number: CA-CIV,No. 1,1
• Citation: 15 Ariz.App. 31,485 P.2d 855
• Parties: Harold F. SCHANEMAN, Appellant, v. Mary Esther DICKERSON, formerly known as Mary Esther Schaneman, and Robert A. Chard, Appellees. 1391.
• Court: Arizona Court of Appeals

Page 855

485 P.2d 855

15 Ariz.App. 31

Harold F. SCHANEMAN, Appellant, v. Mary Esther DICKERSON, formerly known as Mary Esther Schaneman, and Robert A. Chard, Appellees.

No. 1 CA-CIV 1391.

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

June 17, 1971.

Rehearing Denied Sept. 10, 1971.

Robert C. Forquer, Phoenix, for appellant

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, by Jay M. Martinez, Phoenix, for appellees.

STEVENS, Presiding Judge.

This is an appeal from a judgment entered in Maricopa County Superior Court Cause No. C--213878 wherein the appellant Harold F. Schaneman was the plaintiff and the appellees Mary Esther Dickerson and Robert A. Chard were the defendants. Harold F. Schaneman and Mary Esther Dickerson were formerly husband and wife and for convenience they will herein be referred to as 'the husband' and 'the wife' although they were divorced prior to the filing of the instant case. The decree of divorce restored the wife's former name of Dickerson to her. The appellee Chard was the wife's attorney in the divorce case. The wife secured a decree of divorce containing a money judgment and a lien on the husband's property. Thereafter she foreclosed the lien in a separate action and received a sheriff's deed. The instant case is yet another suit wherein the husband sought to void the sheriff's deed and restore title to himself.

THIS COURT'S JURISDICTION

The formal written judgment in favor of the defendants was filed on 16 December 1969. There was a timely motion for new trial. The motion was denied by a minute entry order dated 26 January 1970. The order denying the motion for new trial was not reduced to a formal written order. See Rules 54(a) and 58(a) of the Rules of Civil Procedure, 16 A.R.S. The notice of appeal was filed on 11 March 1970 and we quote the notice.

'COMES NOW THE Plaintiff, by and through his attorney, Robert C. Forquer, and appeals from the orders and Judgment of the Court in the above entitled cause entered on or about the 26th day of January 1970, and from any and all rulings of the Court made in this matter prior to the date of the Judgment.'

The designation of the record on appeal included the December 1969 formal written judgment. The parties have not raised an issue as to the jurisdiction of this Court. Apparently no appellee was injured or misled by the notice of appeal. Applying the liberal construction which the Arizona Supreme Court applied to the notice of appeal in the case of Hanen v. Willis, 102 Ariz. 6, 423 P.2d 95 (1967), we have proceeded with the appeal on its merits as an appeal from the December 1969 formal written judgment.

FACTUAL BACKGROUND

It has been difficult to marshall all of the various dates and the various phases of the instant litigation and the background thereof. It is obvious from the record before us that there were several Superior Court files before the trial judge at the trial of the instant case and the trial court, the witnesses, and counsel were apparently aware of those portions of the several court files before the trial court to which reference was made during the presentation of the testimony at the trial. These files are notable in this Court by their absence.

The husband and the wife were joined in marriage in 1962. In June 1964 she filed a divorce action against the husband being cause #80141.

On 15 July 1964 and on 20 July 1964 the husband allegedly falsified records of delivery to two of his customers. See this Court's opinion in the case of Moore Drug Company v. Schaneman, 10 Ariz.App. 587, 461 P.2d 95, decided 17 November 1969. Some time after the deliveries of 15 and 20 July 1964 the husband was charged with a felony (perhaps two counts, it is not clear in the record before us) the same bearing Maricopa County Superior Court criminal cause #45108. He was adjudged guilty and placed on probation conditioned that he seek some psychiatric help.

On 21 July 1964 the husband was assaulted by a stranger and he received blows to his head. In the complaint filed in the instant case and in the evidence presented before the trial court, the husband urged that this event rendered him 'physically and mentally incompetent to manage his own affairs or to understand fully the nature' of subsequent legal actions. The trial court was not asked to make findings of fact and conclusions of law and by its judgment, of necessity, the trial court found against the husband on this contention. From our examination of the record we agree.

The Moore Drug Company and others sued the husband and the wife for $200,000 arising out of the 15 and 20 July deliveries and asserted earlier short deliveries. This action was filed on 6 October 1964 and was assigned Maricopa County Superior Court cause #166998. The plaintiffs therein recorded a Lis pendens in the Office of the County Recorder. We are not called upon to determine the propriety of the recording of the Lis pendens.

In the meantime and on 3 October 1966 the divorce case was resolved in favor of the wife, the decree of divorce having been filed on that date. In that cause the husband was represented by Attorney Deitz and the wife by Attorney Chard. The divorce is the first of three actions between the husband and the wife and is a vital link in the chain of events now before us. In the decree of divorce the wife was granted a money judgment for arrears due on Pendente lite support in the sum of $925; for Pendente lite attorney's fees not paid in the sum of $250; for additional attorney's fees in the sum of $1,000; and for $1,500 representing the settlement of all of the property rights of the parties. These sums bore interest to the rate of 6% Per annum from 27 September 1966. These were stipulated sums. The trial court imposed a lien on six described parcels of property in which the husband had or supposedly had an interest. Three of those parcels are the subject of the instant litigation. The wife was indebted to Attorney Chard for additional money in connection with the divorce over and above the amounts set forth in the divorce decree.

The husband tendered three checks, apparently written in late 1966, to Attorney Chard to apply on the money judgment. These checks totaled $45 and in January 1967 Attorney Chard returned them to the husband with a demand for payment in full with a reminder that if payment was not made steps would be taken to enforce the lien created by the decree of divorce. On 10 April 1967, in place of attempting to enforce the lien created by the divorce decree by the means of securing the issuance of an execution, the wife filed cause #199201 against the husband, seeking to foreclose the lien. In connection with this litigation Attorney Anderson was employed to handle the foreclosure by reason of his more extended experience in this field, although Attorney Chard signed the pleadings. The husband was served and he employed Attorney Kessler to represent him. The husband had other counsel in the criminal case and in the Moore Drug case. He retained yet other counsel in connection with the appeal to this Court.

Attorney Kessler filed an answer in the lien foreclosure action on 3 May 1967. He testified in the case now before us that he was employed by the husband in the foreclosure action to negotiate a payment schedule relative to the money judgment secured in...