Schock v. Jacka

• Decision Date: 29 October 1969
• Docket Number: No. 9653,9653
• Citation: Schock v. Jacka, 105 Ariz. 131, 460 P.2d 185 (Ariz. 1969)
• Parties: John J. SCHOCK, Appellant, v. Jerry JACKA and Lois Jacka, his wife, Appellees.
• Court: Arizona Supreme Court

Page 185

460 P.2d 185

105 Ariz. 131

John J. SCHOCK, Appellant, v. Jerry JACKA and Lois Jacka, his wife, Appellees.

No. 9653.

Supreme Court of Arizona, In Division.

Oct. 29, 1969.

Rehearing Denied Nov. 25, 1969.

Gorey & Ely, Phoenix, for appellant.

Rawlins, Ellis, Burrus & Kiewit, by Norman D. Hall, Jr., and Michael A. Curtis, Phoenix, for appellees.

HAYS, Justice.

This cause comes before us on appeal from the decision of the Superior Court entering summary judgment in favor of the defendants-appellees, Jacka and ordering that the plaintiff's complaint be dismissed as to them. The plaintiff appeals and seeks an order setting aside the judgment on the grounds that (1) there was a material fact in issue and therefore summary judgment would not lie, or (2) that the court's conclusion of law under the facts was erroneous. In addition, the appellant challenges the competency and relevancy of the affidavits offered in support of the appellee's motion. For the reasons stated below, we affirm.

The facts, briefly stated, are that the Jackas owned two adjoining parcels of real estate in Maricopa County with a 760 foot frontage along the Black Canyon Highway, which was at that time, a conventional two lane highway. The plaintiff, Schock, expressed an interest in the property for development as a trailer court. In the course of negotiations, Schock made it clear to the defendants that the property, if he were to buy it, must have a means of direct access onto the highway. It is charged that the defendants assured Schock that the property did have access to the highway, when in fact the defendants had actual knowledge that the Arizona Highway Commission had designated this to be the proposed route for a controlled-access interstate highway. Relying on the representations of direct access, plaintiff entered into a contract for the purchase of the two parcels.

Some months after the contract was signed, the plaintiff was informed by the Highway Commission that the section of Black Canyon Highway contiguous to this property was designated as a controlled access highway, and that a permit for a driveway onto the right-of-way would not be granted. Two years later, plaintiff forfeited on the contract. He brings this suit for recision, seeking to recover his down payment, the monthly payments made during the pendency of the contract, and other alleged damages.

Without going into detail as to the individual allegations of the complaint, suffice it to say that the plaintiff sufficiently alleges the nine elements of actionable fraud necessary to state a cause of action, as first set out in Moore v. Meyers, 31 Ariz. 347, 253 P. 626 (1927).

Defendants answered the complaint and denied that any misrepresentation had been made. The Jackas then moved for summary judgment on the ground that one of the nine elements of fraud was lacking; that is, the falsity of a material statement. They asserted that a legal right of access to the Black Canyon Highway existed on the date that the alleged representation was made, that it existed on the date that the contract was signed, and on the day that the contract was forfeited. They claim that this was a legal right which existed and was enforceable notwithstanding any resolution or representations of the Highway Commission. The trial court ruled as a matter of law that access to the highway was available to the occupiers of this property at all times material to this cause of action. In doing so, he entered judgment in favor of the defendants.

The issue as stated by the complaint and argued by the parties on motion for summary judgment was the truth or falsity of the defendants' representation. The plaintiff took the position throughout, that the statement as to existing rights of direct access was false when made. The issue of whether there was a duty on the part of the defendants to disclose additional information which they had reason to believe would be considered material by the buyer, was never raised before the trial court.

It is on appeal that the plaintiff has shifted to a theory of fraudulent concealment.

Of course, it is correct that misrepresentation and concealment both may constitute actionable fraud, and in some cases may factually be but two sides of the same legal coin. Where failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and affirmative misrepresentation is tenuous. Both are fraudulent. However, mere failure to disclose a fact, although it may be fraudulent, is not equivalent to affirmation of the contrary fact. See Dash v. Jennings, 272 App.Div. 1073, 74 N.Y.S.2d 881 (1947).

A suppression of the truth is not always actionable fraud, even in equity. There must be a concealment of facts which the party is under a legal or equitable obligation to communicate. Because of the differing issues of fact involved, we recognize concealment and misrepresentation as separate theories which must be independently plead.

While we believe that pleadings should be liberally construed, we have stated before that a trial court does not err in refusing to rule on questions not distinctly and specifically propounded for his judgment. 'In all fairness, the trial court was entitled to be informed that the question was not only within the issues, but insistent and vital, and presently before him for his decision.' Pauley v. Hadlock, 21 Ariz. 340, 347, 188 P. 263, 265 (1920).

It must be noted that neither the plaintiff's complaint nor his opposition to the motion for summary judgment articulate any theory of fraudulent concealment and therefore we consider it proper for the trial court to have limited itself to the issue presented.

The issues which we will consider in this appeal are limited to whether there was a genuine issue as to any material fact, or in the absence of any fact issue, whether the trial court was in error in granting judgment to the defendants as a matter of law. See ARCP 56(c), 16 A.R.S.

As far as we can gather, the complaint and the motion for summary judgment with supporting affidavits present substantially all of the vital facts in the case and at this stage, there was presented to the court purely a question of law. This court stated only recently, that the opponent to a motion for summary judgment does not raise an issue of fact by merely stating in his affidavit that an issue of fact exists. He must show that evidence is available which would justify a trial on that issue. Crocker v. Crocker, 103 Ariz. 497, 446 P.2d 226 (1968). Therefore, further proceedings in the case depend upon the legal conclusions arrived at by the court.

The defendants argue that the issue is resolved by the case of State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 350 P.2d 988 (1960). They...