Vinson v. Marton & Associates
| Decision Date | 05 May 1988 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 159 Ariz. 1,764 P.2d 736 |
| Parties | John VINSON and Taeko Vinson, husband and wife, Plaintiffs-Appellants, v. MARTON & ASSOCIATES, an Arizona partnership; Larry B. Marton and Fanchon Marton, husband and wife; Larry Melcher and Jane Doe Melcher, husband and wife; Phyllis Laneback, an individual; Danielle Gillenwater-Civer, an individual; Mary Ann Silva and John Doe Silva; John J. Silva and Jane Doe Silva, husband and wife; Robert Creighton and Catherine Creighton, Trustees for the Robert and Catherine Creighton Trust; Celeste Silva Brock, Trustee for the Celeste Silva Brock Trust, Defendants-Appellees. 9502. |
| Court | Arizona Court of Appeals |
This is an appeal from summary judgment in favor of defendants in a lawsuit for specific performance of a real estate contract. We must determine (1) whether the sale of the property and the execution of a settlement agreement between some of the parties render this appeal moot, (2) whether a partnership agreement remained effective after the death of some of the original partners, (3) whether the unanimous consent of the partners was required to convey the partnership's sole asset, and (4) whether either party is entitled to summary judgment. We reverse the judgment and remand for further proceedings because we find disputed issues of material facts.
On an appeal from summary judgment we view the evidence and inferences drawn from the evidence in a light most favorable to the party opposing the motion. Sahf v. Lake Havasu City Ass'n for the Retarded and Handicapped, 150 Ariz. 50, 53, 721 P.2d 1177, 1180 (App.1986). So viewed, the record is as follows.
Marton & Associates was a partnership formed in 1960 for the purpose of buying, selling and exchanging real property. The partnership's sole asset was a 238 acre parcel of land near Buckeye, Arizona. The original partners were Larry Marton, Larry Melcher, Dr. A.J. Silva, Richard Stephenson, Dr. Franklin Laneback, Robert Creighton, Charles Johnston and Powell Gillenwater. After Dr. Silva's death, his interest in the property passed by inheritance to Mary Silva, John Silva and the Celeste Silva-Brock Trust; after Dr. Laneback's death, his interest passed to his widow Phyllis Laneback; and after Powell Gillenwater's death, his interest passed to Danielle Gillenwater-Civer. Robert Creighton's interest was transferred to the Robert and Catherine Creighton Trust. The record does not disclose what happened to the interests of Richard Stephenson and Charles Johnston.
In November 1985, John Vinson entered into a contract to purchase the parcel of land owned by Marton & Associates. The purchase agreement was signed by Larry Melcher and John Silva for the sellers. Vinson alleged that Melcher, Silva and their realtor, C.B. Stauffer, represented that they were authorized to sign on behalf of the partnership. At the time Melcher signed the contract he held powers of attorney executed in 1979 from Larry Marton, the Creighton Trust and Phyllis Laneback. Stauffer informed Vinson that the land had been listed for sale by the partnership for several years.
Escrow instructions were issued on December 2, 1985, and were signed by Larry Marton, Larry Melcher, Mary Silva, Celeste Silva-Brock, John Silva, Phyllis Laneback, Robert Creighton and Catherine Creighton. Danielle Gillenwater-Civer was the only person with an interest in the property who did not sign the escrow instructions. After the escrow instructions were signed, Stauffer presented the partnership with another offer to purchase the property at a higher price. Subsequently, the partnership and the individual partners refused to convey the property to Vinson.
Vinson filed suit alleging two counts for breach of contract against the partnership and the individual partners and seeking specific performance of the contract. Alternatively, Vinson sought damages in a third count against John Silva and Larry Melcher for damages resulting from their having entered into a contract without authority to do so. In count four, the plaintiffs sought damages against Melcher, Silva, Stauffer, and P.R. Powell and Associates, Stauffer's employer, for false representation.
All parties filed motions and cross motions for summary judgment, and the trial court granted judgment in favor of defendants on the first two counts of the complaint. The judgment contains language making it final and appealable pursuant to Rule 54(b), Arizona Rules of Civil Procedure.
After the appeal relating to counts one and two of the complaint was filed, Vinson, Melcher, Powell and Stauffer entered into a settlement agreement respecting counts three and four. The settlement agreement specifically permitted Vinson to proceed with his appeal on counts one and two. Vinson agreed to release Melcher, Stauffer and Powell from any liabilities arising from the sale of the property at issue and not to sue Melcher individually or as a partner in Marton & Associates under counts one and two of the complaint. It permits Vinson to do whatever is necessary to preserve his rights to proceed against the other defendants under counts one and two of the complaint. Silva and his wife refused to enter into the settlement agreement.
Marton & Associates and the individual partners filed a motion to dismiss the appeal on grounds of mootness because the property at issue was sold to a third party on June 29, 1987. [Hereinafter all appellees will be referred to as Marton & Associates unless the context requires a distinction of separate interests.] Vinson responded, arguing that relief should still be available to him in the form of damages if he prevails on appeal. This court took the motion under advisement for consideration with the appeal.
The judgment that is the subject of this appeal dismissed counts one and two of Vinson's complaint, which alleged breach of contract and sought specific performance against Marton & Associates and the individual partners. Vinson filed a motion in the trial court to amend the complaint to seek damages on the same breach of contract theories and to add a misrepresentation claim against Melcher, Silva and Stauffer. The trial court denied the motion as to those portions of the complaint covered by the summary judgment that was on appeal but permitted other amendments. The counts remaining for resolution by the trial court pertain to the claims for damages against Melcher, Silva and Stauffer.
Vinson did not file the $445,000 supersedeas bond necessary to stay that portion of the judgment expunging the lis pendens on the property. The record suggests that Vinson was financially unable to do so. The property was sold during the pendency of this appeal.
In addition to opposing the motion to dismiss, Vinson filed a motion in this court for leave to amend his complaint to seek damages as an alternative to specific performance. This court denied the motion, indicating that the motion should be addressed to the trial court judge.
A decision becomes moot for purposes of appeal where as a result of a change of circumstances before the appellate decision, action by the reviewing court would have no effect on the parties. Arizona State Bd. of Directors for Junior Colleges v. Phoenix Union High School Dist., 102 Ariz. 69, 73, 424 P.2d 819, 823 (1967). Marton & Associates contends that the sale of the property leaves Vinson without a remedy. It relies in part on Canton v. Monaco Partnership, 156 Ariz. 468, 753 P.2d 158 (App. 1987) to support this position. Monaco Partnership appealed from the trial court's award of specific performance to Canton. The judgment required Monaco to convey the title to a condominium to Canton under a specified financing arrangement. Monaco argued that it no longer had title to the property at the time of judgment. Division Two of this court reversed because specific performance cannot be granted where it is dependent upon the acts of a third person not a party to the litigation. Canton argued on appeal that if specific performance was held to be improperly granted, the case should be remanded for retrial on the issue of damages. The appellate court rejected this argument because Canton had elected specific performance as a sole remedy at the close of the evidence and had failed to present any evidence of contract damages.
The procedural posture of this case is much different from Canton. Although his pleadings requested only specific performance, Vinson had not been put to an election of remedies in the trial court. A person cannot be forced to elect before the conclusion of trial the theory he will advance or the remedy he will seek. Edward Greenband Enters. v. Pepper, 112 Ariz. 115, 117, 538 P.2d 389, 391 (1975). Even after trial, a party may move to amend his complaint to conform to the evidence. Rule 15(b), Arizona Rules of Civil Procedure. The issue addressed in the motions for summary judgment was not the appropriateness of specific performance versus damages. Rather, it was whether Vinson could establish a breach of contract against the partnership and the individual partners. At that time there was no indication that specific performance would be unavailable to Vinson. We therefore find that Canton does not...
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