Skok v. City of Glendale, 1

• Decision Date: 26 April 1966
• Docket Number: No. 1,CA-CIV,1
• Citation: 3 Ariz.App. 254,413 P.2d 585
• Parties: Robert G. SKOK, Jack E. West, Loren Sederstrom, M. T. Donato, Sam J. Bartaluzzi and Donald P. Woods, Appellants, v. CITY OF GLENDALE, a municipal corporation, Appellee. 148.
• Court: Arizona Court of Appeals

Page 585

413 P.2d 585

3 Ariz.App. 254

Robert G. SKOK, Jack E. West, Loren Sederstrom, M. T. Donato, Sam J. Bartaluzzi and Donald P. Woods, Appellants, v. CITY OF GLENDALE, a municipal corporation, Appellee.

No. 1 CA-CIV 148.

Court of Appeals of Arizona.

April 26, 1966.

Rehearing Denied May 19, 1966.

Moore, Romley, Kaplan, Robbins & Green, by Elias M. Romley, and Kenneth J. Sherk, Phoenix, for appellant Woods.

Duecy & Turner, by D. Kelly Turner, Scottsdale, for appellants Skok, West, Donato and Bartaluzzi.

Kaplan & Wilks, by Richard B. Wilks, Phoenix, for appellant Sederstrom.

Biaett & Bahde, by Kenneth Biaett Phoenix, for appellee.

CAMERON, Judge.

This is an appeal from a judgment in favor of the plaintiff below, City of Glendale, and against the co-tenants of certain real property at the time an agreement was allegedly entered into between the cotenants and the City of Glendale for the extension of sewer lines and service to the real property. Other aspects of this case have been previously considered on appeal. City of Glendale v. Barclay, 94 Ariz. 358, 385 P.2d 230 (1963), City of Glendale v. Arizona Savings & Loan Association in Receivership, 2 Ariz.App. 379, 409 P.2d 299 (1965).

We are called upon to determine whether a deposition taken of an adverse party prior to trial is admissible under Rule 26(d)(2), Rules of Civil Procedure, 16 A.L.S., where, prior to trial, the said adverse party by reason of an adjudication and discharge in bankruptcy no longer has a financial interest or possible liability in the law suit.

The facts necessary for a determination of this matter on appeal are as follows: On or about 30 December 1957, William Barclay, dealing with his sole and separate property, and the defendants Robert G. Skok, Jack E. West, Loren Sederstrom, M. T. Donato, Sam J. Bartaluzzi and Donald P. Woods and their respective wives, entered into a 'Declaration of Trust, Assignment and Co-tenancy Agreement' dealing with approximately 320 acres of land located in Maricopa County near the City of Glendale, Arizona. The agreement provided in part as follows:

'5. For and during the co-tenancy of the parties to this agreement The management of the above described real property shall be vested in all of the co-tenants, but the co-tenant William Barclay shall be entitled to act for and on behalf of his other co-tenants in accordance with the instructions furnished to him by the agreement of all of the co-tenants. The authorization of said William Barclay shall include the execution of documents, receipts, and the purchase of said premises After the same has been agreed to by all of the cotenants.' (Emphasis added.)

Thereafter, on or about 7 January, 1958, the said William Barclay and the City of Glendale, entered into an agreement whereby the City of Glendale agreed to extend its existing trunk sewer lines to the proposed property and to be responsible for the maintenance of said sewerage system after its construction upon the premises. The agreement provided that the co-tenants would build and connect said sewerage facilities to not less than 250 houses within eighteen months after the effective date of the contract, or in lieu thereof, to pay to the City of Glendale:

'each month an amount equal to $1.50 per month for each house less than the said 250 houses connected to said sewerage facilities, and shall continue such monthly payments until the houses built and connected to said sewer equal 250 in number.'

The agreement was signed on behalf of the co-tenants by William Barclay, to wit:

'The Co-Tenants

'By /s/ William Barclay

William Barclay'

None of the other co-tenants signed the agreement individually and denied having given authority to Barclay to sign the agreement. The agreement contained the following provision:

'The co-tenants have authorized William Barclay to execute this agreement on their behalf as he has been empowered to do under the co-tenancy agreement.'

It would appear that only thirty-three houses were constructed on said premises, and the City of Glendale brought suit against the defendants and others. The trial court granted the defendants' motion to dismiss, and the City of Glendale appealed. The Arizona Supreme Court in the prior decision of City of Glendale v. Barclay, supra, held, in determining the issues appearing in the pleadings under the facts alleged, that the defendants, as the original covenantors, remained liable even though they had transferred ownership of the land. The matter was reversed and remanded for further proceedings in accordance with the opinion.

An action against subsequent purchasers of the property was dismissed, and the lower court's action was affirmed by the Court of Appeals, in the matter of City of Glendale v. Arizona Savings and Loan Association in Receivership, supra. The Court of Appeals held that the agreement was neither a covenant running with the land, nor an equitable lien and that therefore the subsequent purchasers of the property were not liable on the contract.

The deposition of William Barclay was taken on 26 January, 1961. After the taking of his deposition, but prior to the trial, William Barclay was adjudicated a bankrupt, and was granted a discharge in bankruptcy. Trial was held 16 November, 1964, at which trial the deposition of William Barclay was admitted in evidence, over the objection of the defendants.

The court entered judgment in favor of the plaintiff, City of Glendale, against the defendants in the amount of $20,832, plus interest in the amount of $3,281.04. From said judgment defendants prosecute this appeal.

In attempting to show the authority of William Barclay to act for and on behalf of the co-tenants in negotiating and signing the contract in question with the City of Glendale, the plaintiff, City of Glendale, relied primarily upon the deposition of William Barclay concerning the existence of a letter which allegedly authorized the said William Barclay to enter into and sign said contract for and on behalf of the co-tenants.

A reading of the transcript of the evidence in the trial below reveals that without the deposition of William Barclay the plaintiff has failed in its proof.

Rule 26(d), Rules of Civil Procedure, states in part as follows:

'USE OF DEPOSITIONS

'At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had due notice thereof, in accordance with any one of the following provisions:

'1. * * *

'2. The deposition of a party or of any one who at the time of taking the deposition was an officer, director, or managing agent of a public or private corporation, partnership, or association which is a party may be used by an adverse party for any purpose.' Rules of Civil Procedure, 26(d)(2), 16 A.R.S.

The plaintiff, City of Glendale, in offering the deposition in evidence recited Rule 26(d)(2), and stated as follows:

'So I think, of course, Mr. William Barclay was a party and we are entitled to use this deposition. We are an adverse party. He is a defendant and as the plaintiff we are entitled to use this deposition for any purpose. Of course, the purpose in using this is not only against Mr. Barclay but also against all the defendants.'

It is the contention of the defendants that the plaintiff having been granted a discharge in bankruptcy as to any liability as a result of the suit in question, is no longer an adverse party within the meaning of the Rules of Civil Procedure. In order for William Barclay's deposition to be admissible 'for any purpose', under this rule (26(d)(2)), Barclay must not only be a party in the action, but the 'party' introducing the deposition must be adverse to Barclay's position in the suit. Young v. Liddington, 50 Wash.2d 78, ...