Tanner v. Levie

• Decision Date: 07 November 1969
• Docket Number: No. 9667,9667
• Citation: 460 P.2d 995,105 Ariz. 149
• Parties: Marion N. TANNER, a single woman, Appellant, v. Paul D. LEVIE and Rae Levie, his wife, Appellees.
• Court: Arizona Supreme Court

Page 995

460 P.2d 995

105 Ariz. 149

Marion N. TANNER, a single woman, Appellant, v. Paul D. LEVIE and Rae Levie, his wife, Appellees.

No. 9667.

Supreme Court of Arizona, In Banc.

Nov. 7, 1969.

Stark, Larson & Wood, by Rod Wood, Phoenix, for appellant.

Jennings, Strouss, Salmon & Trask, by Nicholas Udall, Phoenix, for appellees.

STRUCKMEYER, Justice.

This suit was brought by Marion N. Tanner, as plaintiff in the court below, to recover the sum of $10,000.00 from Paul D. Levie, an attorney at law, on the theory of conversion or breach of trust. At the conclusion of plaintiff's case, the trial court granted a directed verdict in favor of Levie. As customary, in testing the record on appeal from the granting of a motion for directed verdict, the evidence and reasonable inferences therefrom will be viewed most strongly against the Levies and in the light most favorable to plaintiff, Tanner. Heth v. Del Webb's Highway Inn, 102 Ariz. 330, 429 P.2d 442 (1967); Vigil v. Herman, 102 Ariz. 31, 424 P.2d 159 (1967); Figueroa v. Majors, 85 Ariz. 345, 338 P.2d 803 (1959).

In December of 1963, plaintiff was the owner of certain lands in Yavapai County, Arizona, known as the Rancho Moana. The ranch was heavily encumbered by mortgages. The third mortgage was in default and was in the process of being foreclosed, trial of which was set for January 7, 1964. Plaintiff, being desirous of selling the ranch, entered into negotiations with one Robert Anshen, an architect from San Francisco, California. On January 6, 1964, negotiations had proceeded to the point that the purchase price and other principal terms had been agreed upon. Plaintiff's attorney met with Anshen's attorney, defendant herein, both being from Phoenix, and an option was prepared which was signed early on the morning of January 7. It was understood that the third mortgage holder had agreed to withhold foreclosure if an option was entered into and exercised by Anshen.

The option in part provided:

'* * * It is understood and agreed that this option escrow is contingent upon settlement of the mortgage foreclosure action pending in the Superior Court of Yavapai County and reinstatement of the promissory note and realty mortgage in accordance with their terms and provisions and that the same shall be payable according to the terms of that promissory note dated May 1, 1961, and that inasmuch as the same has been accelerated it shall be reinstated or modified to the extent that the same shall not be accelerated by virtue of the foreclosure action.'

After the execution of the option, two $5,000.00 checks drawn by Anshen and made payable to Guarantee Title and Trust Company were delivered to plaintiff's attorney to be placed in escrow subject to the contingency expressed in the option agreement above quoted. Plaintiff's attorney remained in Prescott in order to dispose of the foreclosure action and it was disposed of by an agreement for the entrance of judgment. Later an agreement signed on March 2, 1964, provided for the execution by plaintiff of a new note and mortgage on the same conditions as the former mortgage.

Pending the disposition of the mortgage foreclosure on the morning of January 7, 1964, plaintiff's attorney gave the two checks and the signed option to Levie who was returning to Phoenix shortly. It was understood that an escrow would be established by him and the money deposited that day. Levie agreed to establish the escrow and accepted the checks with that understanding.

However, when Levie arrived in Phoenix, he did not set up the escrow as agreed but instead placed the checks in his personal safe. When plaintiff's attorney learned that the escrow had not been set up, he contacted Levie who during the next sixty days gave him numerous excuses for not having done so; none of the reasons given included the fact that plaintiff had not complied with the quoted terms of the option.

All of the parties assumed that the option was in effect. Anshen visited the ranch on numerous...