Wright v. Hills
| Decision Date | 09 March 1989 |
| Docket Number | CA-CV,No. 2,2 |
| Citation | 161 Ariz. 583,780 P.2d 416 |
| Parties | Jack J. WRIGHT, a single man, Plaintiff/Appellant, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Appellant, v. Allen Wayne HILLS and Carole Elaine Hills, husband and wife; Alma School Land Fill, Inc., an Arizona corporation; Andrew S. Jackson; and Joseph Urban and Joan C. Urban, husband and wife, Defendants/Appellees. 88-0342. |
| Court | Arizona Court of Appeals |
This is an appeal from the granting of a summary judgment. The main issue in this case is whether a party can avoid summary judgment by filing an affidavit which contradicts his previous depositional testimony. A secondary issue is whether the trial court erred in imposing sanctions under Rule 11(a), Rules of Civil Procedure, 16 A.R.S., against the appellant and his attorneys.
Jack Wright filed a complaint against the defendants which alleged that one John C. Trevizo asked him to find investors to forestall a pending foreclosure on a parcel of land located in Mesa, Arizona. If he was successful in finding appropriate investors, Trevizo promised to pay Wright by conveying to him an undivided one-fourth interest in the backfilling rights of the property. Wright introduced Trevizo to the defendant A. Wayne Hills, and negotiations culminated in a meeting between Wright, Trevizo and Hills where it was agreed that the Hills would provide sufficient funds to stop the foreclosure and in return Trevizo and Hills would share equally in all ownership rights of the property including, but not limited to rock and gravel, mining rights and backfilling rights. Furthermore, Trevizo and Hills were to jointly and severally see to it that Wright got paid for his efforts in bringing the parties together.
The complaint further stated that: "In recognition of this agreement and as a result of said agreement ..." the property was conveyed to a corporation owned by Trevizo and another, and to the Hills, but that they thereafter refused to pay Wright his share of the gross profits from the backfilling operations as they had promised.
The complaint also alleges that the property had been subsequently fraudulently conveyed to the defendants Alma School Land Fill, Inc. (Alma School) and the Urbans. The defendants Jackson were alleged to be owners, shareholders, agents or employees of the defendant Alma School.
After filing their answers and after discovery was undertaken, defendants filed motions for judgment on the pleadings which were subsequently treated by the court as a motion for summary judgment in view of matters outside the pleadings which were filed by the parties. The motion for summary motion contended that Wright was acting as a real estate broker in the Trevizo-Hills deal and that he could not maintain the suit because he was not a qualified licensed broker or salesman. See A.R.S. § 32-2152. The motion filed by the defendants Alma School, the Jacksons and the Urbans also contended that Wright admitted in his deposition to certain facts which showed, as a matter of law, that there was no fraudulent transfer of the land.
In opposition Wright filed an affidavit which stated that Trevizo never told him that any transfer of the property was to take place, that all the investor would get would be the full proceeds to the rock and gravel operations until the investor got his money back and that the investor and Trevizo would thereafter share equally in all gravel profits and in 50 percent of any future landfill or backfill operations. According to the affidavit, Wright then located Hills and the three had a meeting where it was agreed that Hills and Trevizo would each get 37 and one-half percent in the backfilling operation and he would get 25 percent. No discussion of transferring title in connection with the investment had ever taken place as of the end of the meeting. It was not until three or four days later that Trevizo told him that Hills had forced him to renegotiate and transfer one-half of the property to Hills as part of the transaction.
In response to this affidavit the defendants pointed out to the court Wright's deposition testimony. The plaintiff testified in his deposition that, pursuant to his agreement with Trevizo for procuring investors, he was to receive:
A. ... 25 percent of the total. Later I told Johnny that was entirely too much.
Q. Of the total received by Trevizo, is that what you mean?
A. Of everything, all the property, the sale of the property, everything, 25 percent originally.
Q. So 25 percent of any purchase price received on the property?
A. Yes. He was desperate. He had to sell it.
* * * * * *
Q. Can you describe for me what the compensation you were to receive out of the Ron Perkins' deal was? If it was different or if it was the same, you can just tell me. 1
A. At that time 25 percent of everything.
Q. When you say, "everything," just to keep the record clear, we're still talking about net proceeds?
A. We're talking about the sale of the property. We're talking about the digging of the property. We're talking about the backfill of the property. We're talking about everything that happened on the property then and later. I was to receive 25 percent at that time.
(Emphasis added).
Wright also said in his deposition that during the negotiations with Hills, the parties had three meetings. The first was at Hills' office attended by Wright and Wayne Hills. The second meeting was two to three weeks later at Hills' home attended by Wayne Hills, Trevizo, and Wright. The third meeting took place in March at a restaurant, attended by Wright, Trevizo, Hills and part of the time by his son. Wright testified that the deal was discussed at this meeting and an agreement was reached. When asked if at the time of this meeting plaintiff knew whether Trevizo was to retain 100 percent ownership of the property, he testified, "It wasn't my understanding that he was to maintain it 100 percent." He later testified that "All the time he [Wayne Hills] was to have 100 percent until he got his money back" and "he was to give Johnny Trevizo 50 percent of the land back after ... Wayne got all of that money back out of the business...." When asked if there was more than one proposed deal between Trevizo and Hills, Wright testified that he had no idea.
Wright was given an opportunity to correct his deposition. He made some corrections but did not make any corrections of his foregoing testimony. There is no doubt that his affidavit contradicts his depositional testimony which shows, contrary to the assertion made in his affidavit, that he knew all along that a transfer of real property was to take place.
After Wright's deposition was taken, the attorneys for the defendants sent letters to plaintiff's attorney asking that the complaint be dismissed, setting forth the reasons why the plaintiff had no claim and promising not to seek reimbursement for attorney's fees if the complaint was dismissed by a certain date. The Hills pointed out that Wright's deposition showed he was acting as a broker and could not recover since he was not licensed. The other defendants, whose liability rested on the alleged fraudulent transfer, stated in their letter that Wright's own testimony in the deposition showed that there was no fraudulent transfer of the land. Plaintiff's counsel refused to heed the admonitions of the defendants and insisted that further depositions would have to be taken before he could consider dismissal of the lawsuit.
The trial court granted the defendants' summary judgment and awarded the defendants Jackson, Urban and Alma School attorney's fees in the sum of $3,860.70 and defendants Hills attorney's fees in the sum of $5,792.00, pursuant to Rule 11, finding that after the plaintiff's deposition, it should have been clear that plaintiff's claim was not well grounded and was not warranted by existing law.
Appellants contend that the trial court erred in failing to consider Wright's affidavit in opposition to the motion for summary judgment, that summary judgment should not have been granted because the record shows that he did not act as a real estate broker, and that the trial court erred in imposing sanctions under Rule 11. We do not agree and affirm.
The court of appeals' role, in reviewing the granting of summary judgment, is to determine whether there is any initial material fact underlying the adjudication, and if not, whether substantive law was correctly applied. Long v. Buckley, 129 Ariz. 141, 629 P.2d 557 (App.1981). On reviewing a judgment granting a motion for summary judgment, the court of appeals must view the evidence in the light most favorable to the party who opposed the motion, and must affirm if there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. World Investments, Inc. v. Harber's Estate, 17 Ariz.App. 107, 495 P.2d 877 (1972). We shall ignore those portions of Wright's deposition which he refers to in his opening brief and which were not brought to the attention of the trial court. We shall also ignore appellant's request to read the entire deposition of Wright. This request was first made to the trial court after it granted summary judgment, in appellants' reply to the appellee's response to appellants' motion for reconsideration and was properly rejected by the trial court. See Phil W. Morris Company v. Schwartz, 138...
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