Udy v. Calvary Corp., 1

• Decision Date: 17 August 1989
• Docket Number: No. 1,CA-CV,1
• Citation: 162 Ariz. 7,780 P.2d 1055
• Parties: George UDY and Laura Udy, his wife; George W. Udy, their minor child, Plaintiffs-Appellants, v. CALVARY CORPORATION, an Arizona corporation, d/b/a Green Valley Mobile Home Park, and Robert Hanson, Defendants-Appellees. 88-029.
• Court: Arizona Court of Appeals

Page 1055

780 P.2d 1055

162 Ariz. 7

George UDY and Laura Udy, his wife; George W. Udy, their minor child, Plaintiffs-Appellants, v. CALVARY CORPORATION, an Arizona corporation, d/b/a Green Valley Mobile Home Park, and Robert Hanson, Defendants-Appellees.

No. 1 CA-CV 88-029.

Court of Appeals of Arizona,

Division 1, Department A.

Aug. 17, 1989.

Appeal Dismissed Oct. 30, 1989.

[162 Ariz. 8] Treon, Strick, Lucia & Aguirre by Arthur G. Newman, Jr. and Cindy Hansel Strickland, Phoenix, for plaintiffs-appellants.

Michael Herzog and Lewis and Roca by Brian Goodwin, Susan M. Freeman and Thomas E. Klinkel, Phoenix, for defendants-appellees.

OPINION

BROOKS, Judge.

Appellants George Udy and Laura Udy appeal from summary judgment entered for appellees Calvary Corporation and Robert Hanson on the Udys' negligence claim for personal injuries suffered by the Udys' minor child, George W. Udy (Georgie), when he was hit by a car on Southern Avenue in Phoenix. To resolve the appeal, we must determine (1) whether a landlord has a duty to exercise his retained control over his tenants' use of the premises so as to protect them from a danger located outside the premises; and (2) if so, whether the landlord in this case fulfilled that duty as a matter of law. We also discuss whether the Udys' notice of appeal was sufficient to confer jurisdiction upon this court to review the trial court's judgment as to Georgie's claim as distinct from the claims of his parents.

FACTS AND PROCEDURAL HISTORY

On appeal from a summary judgment, the facts are viewed in the light most favorable to the party against whom judgment was taken. Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 [162 Ariz. 9] P.2d 1025 (1985). In that light, the facts are as follows. Calvary Corporation owns the Green Valley Mobile Home Park ("the park") on Southern Avenue in Phoenix. Robert Hanson is president and sole shareholder of Calvary Corporation. At the time of the accident that resulted in this litigation, Yvonne Colson was the on-site manager for the park. She was an agent of Calvary Corporation and took her orders from Robert Hanson.

The Udys and their children, Megan, Shannon, and Georgie, moved into the park on February 22, 1985. The mobile home space that they rented was next to Southern Avenue, a major east-west street with a speed limit of 45 miles per hour. Although two of the three neighboring spaces in the park that bordered on Southern Avenue were fenced, there was no fence on the space that the Udys rented.

When the Udys first drove out to look at the park, the traffic on Southern was not heavy. The Udys had not lived in that part of town before, and Laura Udy thought that Southern Avenue was more of a rural road than a busy main street. Before the Udys rented the space, Laura Udy asked manager Yvonne Colson about the traffic and told her that she did not want the space if it was in an area of heavy traffic. Colson told her that there had never been any problems in the past as a result of the space's close proximity to Southern.

By signing Calvary Corporation's rental agreement, the Udys agreed to comply with the "park rules and regulations." Paragraph 4 of the rules and regulations provided:

No construction, additions, alternations [sic], carports, structures, fences or the like may be built unless first approved in writing by the Management; and if approved, they may not be removed without prior written permission....

Paragraph 18 provided:

Fencing must be chain link type, with vertical and horizontal Pipe supports running the entire length of the fence. Drawings and plans must be submitted to Management. Prior written approval must be secured from Management. Fencing that does not comply with Park Rules, Regulations and standards must be removed within sixty (60) days after these Rules and Regulations become effective.

Robert Hanson alone had the authority to approve any change to a mobile home space. Many tenants had asked for permission to erect fences either for the safety of their children or because of problems with prowlers, but their requests had been refused. Hanson has never given a tenant permission to erect a fence either before or after the accident that gave rise to this lawsuit. Colson testified that it was her understanding that Hanson would never grant any tenant permission to erect a fence for any reason.

Shortly after the Udys moved into the park, they realized that the traffic on Southern Avenue was generally much heavier than it had been on the day they rented their space. Within the first week after they moved in, Laura Udy asked Hanson for permission to put up a fence around their yard. He refused permission. She later asked if they could fence the back yard, offering to do so at their own expense. Hanson again refused permission. She repeated her requests to manager Colson within the first month or two after the Udys moved in. Colson relayed the requests to Hanson, who refused permission again. George Udy received a similar response from Hanson each of the two or three times he spoke to him about fencing the yard. Laura Udy told both Colson and Hanson that she wanted a fence for the safety of her children.

Laura Udy allowed her children to play only on the north side of their mobile home (the side away from Southern Avenue), and she tried to have them play in other areas wherever possible, such as near the Colsons' mobile home or at the park's laundry room. Although the park was advertised as a family park, it contained no established area where children could play. At first the Udy children were permitted to play around the laundry room, but Hanson later ordered that they play in their own yard and threatened to evict the Udys if the children played elsewhere.

The Udys considered the traffic on Southern Avenue to be a danger to their children from the first month of their tenancy. Throughout the sixteen months that the family resided at the park before the accident, George and Laura Udy repeatedly warned their children, including Georgie, about the danger of traffic on Southern Avenue. The Udys wished to move, but could not afford to relocate their mobile home.

On June 21, 1986, the day of the accident, seven-year-old Georgie played basketball with his eighteen-year-old cousin while Georgie's mother and sisters were away from home. Later that day, George Udy gave Georgie permission to take the basketball outside to play again. Georgie and his cousin went outside while George Udy stayed inside to play a video game. While the boys were playing, the ball rolled out of the yard and onto Southern Avenue. Georgie followed three or four feet behind the ball, looking straight at it with his hands outstretched. A truck was approaching westbound only four to ten feet away when the child entered the street, and the driver was unable to take evasive action. The truck struck Georgie as he bent to reach for the ball. Paramedics were able to revive the child, but he sustained severe, permanent brain damage, a badly broken leg, and multiple other injuries. For the purpose of this appeal only, Calvary Corporation and Hanson have conceded that the absence of a fence around the Udys' yard was a proximate cause of Georgie's injuries.

The Udys commenced this action, initially naming Calvary Corporation and John Does I-X as defendants. The defendants later moved for summary judgment. The Udys moved to amend their complaint to add Hanson as a defendant. The trial court granted that motion, and the parties agreed that the trial court's ruling on the motion for summary judgment would apply to both Calvary Corporation and Hanson. We will therefore refer to Calvary Corporation and Hanson collectively as "the Landlord" in the discussion that follows.

By minute entry of October 21, 1987, the trial court granted the Landlord's motion for summary judgment without stating its reasons. Following entry of formal judgment on November 9, 1987, counsel for the Udys filed a timely notice of appeal. The caption of the notice of appeal identifies Georgie Udy as a plaintiff along with George Udy and Laura Udy, but the body states only:

NOTICE IS GIVEN that plaintiffs George Udy and Laura Udy appeal to the Court of Appeals, Division One, from the Judgment in favor of defendants entered November 9, 1987.

JURISDICTION OF APPEAL AS TO GEORGIE'S CLAIM

The Landlord contends that Georgie's claim is not before this court on appeal because the notice of appeal did not name him as one of the parties appealing. The Udys dispute that contention, arguing that George and Laura Udy are the only true parties plaintiff and that from the start they have asserted Georgie's claim in their own names as Georgie's representatives. They note that they have been identified throughout the pleadings as acting in the dual capacity of guardians of their minor son and claimants in their own right.

Citing Hanen v. Willis, 102 Ariz. 6, 423 P.2d 95 (1967), the Udys argue that as long as the Landlord had sufficient notice of the appeal and the notice of appeal neither misled nor prejudiced it, any clerical error may be disregarded.

Our supreme court stated in Hanen, "[W]hen adequate notice to appeal has been given to the other party, no mere technical error should prevent the appellate court from reaching the merits of the appeal." 102 Ariz. at 9, 423 P.2d at 98. We agree that the Udys' notice of appeal was sufficient to give notice of their intention to appeal the judgment on Georgie's behalf as well as their own. It was clear to both sides from the beginning that George Udy and Laura Udy were prosecuting this action as representatives of their son Geor gie.. The Udys' complaint alleged in paragraph I:

Plaintiffs are residents of Maricopa County, Arizona. Plaintiffs George Udy and Laura Udy bring this action as the guardian ad litem for their minor son, George W. Udy (hereinafter referred to as "Georgie"), and on their own behalf as Georgie's parents.

The...