Wyatt v. Wehmueller

• Decision Date: 12 September 1989
• Docket Number: CA-CV
• Citation: 785 P.2d 581,163 Ariz. 12
• Court: Arizona Court of Appeals
• Parties: James D. WYATT and Donna K. Wyatt, husband and wife; Clinton E. Wolf and Joann P. Wolf, husband and wife; John W. Russell and Patty A. Russell, husband and wife; Joseph Soldevere and Jane M. Soldevere, husband and wife; the Glendale Industrial Air Park Associates, an Arizona general partnership; and Pacific General Investment Group, Ltd., an Arizona corporation; and Richard N. Brandes, Plaintiffs-Appellants, v. James WEHMUELLER and Jane Doe Wehmueller, husband and wife; Phillip Polich and Jane Doe Polich, husband and wife; James Overfield and Jane Doe Overfield, husband and wife; Glendale Airport Partners, an Arizona general partnership; Title USA, Inc., formerly known as U.S. Life Title, Inc., a foreign corporation; and Z & H Engineering, an Arizona corporation, Defendants-Appellees. 188-163.

Page 581

785 P.2d 581

163 Ariz. 12

James D. WYATT and Donna K. Wyatt, husband and wife; Clinton E. Wolf and Joann P. Wolf, husband and wife; John W. Russell and Patty A. Russell, husband and wife; Joseph Soldevere and Jane M. Soldevere, husband and wife; the Glendale Industrial Air Park Associates, an Arizona general partnership; and Pacific General Investment Group, Ltd., an Arizona corporation; and Richard N. Brandes, Plaintiffs-Appellants, v. James WEHMUELLER and Jane Doe Wehmueller, husband and wife; Phillip Polich and Jane Doe Polich, husband and wife; James Overfield and Jane Doe Overfield, husband and wife; Glendale Airport Partners, an Arizona general partnership; Title USA, Inc., formerly known as U.S. Life Title, Inc., a foreign corporation; and Z & H Engineering, an Arizona corporation, Defendants-Appellees.

1 CA-CV 88-163.

Court of Appeals of Arizona Division 1, Department C.

Sept. 12, 1989 Appellants' Petition for Review Granted in Part Jan. 30, 1990. ^*

Bentley, Brandes & Brandes by Richard N. Brandes and David A. Joffe, Phoenix, for plaintiffs-appellants.

Mariscal, Weeks, McIntyre & Friedlander by Michael S. Rubin and James T. Braselton, Phoenix, for defendants-appellees Wehmueller, Polich and Glendale Airport Partners.

MICHAEL D. HAWKINS, Judge Pro Tem.

This appeal involves an effort to forestall a trustee's sale and the consequences to Plaintiffs-Appellants (herein referred to as "plaintiffs") and their counsel evolving out of those efforts.

Plaintiffs, pursuant to the terms of an August 20, 1985 real estate sales contract, purchased a parcel of real property from defendants. In connection with that purchase, plaintiffs executed a promissory note and deed of trust.

On June 17, 1987, plaintiffs commenced the underlying action against Appellees Wehmueller, Polich & Glendale Airport Partners (herein referred to as "defendants") and others. The essence of the complaint was that plaintiffs had contracted to purchase 60 net usable acres of land, but that they were in fact delivered only 56 such acres at closing. Plaintiffs' complaint sought compensatory damages, pre-judgment interest, costs and attorney's fees. No equitable or injunctive relief was sought in the complaint.

Sometime prior to July 28, 1987, plaintiffs defaulted on payments due under the above promissory note and defendants recorded a notice of trustee's sale. The notice scheduled a public sale of the property for October 29, 1987.

On October 21, 1987, plaintiffs presented the court with an application for a temporary restraining order, order to show cause, and preliminary injunction seeking to prevent the trustee's sale. In substance plaintiffs' application alleged that the failure to deliver the full 60 acres of usable land had caused plaintiffs' default under the note and deed of trust and that, accordingly, the trustee's sale should be stayed pending a resolution of the merits of the underlying action.

Defendants responded to the motion, plaintiffs filed several affidavits in support of the application, and the matter was argued to the trial court on October 23, 1987. On October 26, 1987, the trial court denied plaintiffs' request for injunctive relief, finding neither irreparable injury nor a likelihood of success on the merits.

On October 29, 1987, the day scheduled for the trustee's sale, plaintiffs' attorney Richard N. Brandes filed and recorded a notice of lis pendens pursuant to A.R.S. § 12-1191. On November 2, 1987, defendants filed a motion to quash lis pendens and requested an expedited hearing. This motion argued that because plaintiffs' complaint sought only to recover monetary damages, the action was not one "affecting title to real property" within the meaning of A.R.S. § 12-1191 and that the notice of lis pendens had misrepresented the object of the action and the relief demanded. The motion requested an order quashing the notice of lis pendens and an award of statutory damages under A.R.S. § 33-420(A) and attorney's fees against plaintiffs' counsel under Rule 11, Arizona Rules of as well as A.R.S. §§ 12-349 and 33-420.

On November 3, 1987, the trial court heard argument on the motion to quash lis pendens. Although a court reporter was present, no transcript of the hearing has been provided. Following presentation of argument, the trial court granted the motion to quash, giving plaintiffs and their attorney additional time to respond to the request for damages, attorney's fees and costs. On November 9, 1987, the trial court entered a formal order quashing the notice of lis pendens. No finding pursuant to Rule 54(b), Arizona Rules of Civil Procedure was made in connection with the entry of that order.

Following the entry of the formal order and in accordance with the trial court's earlier ruling, plaintiffs and their attorney filed a response to a motion to quash lis pendens limited to the claim for damages, attorney's fees and costs. Defendants thereafter filed a reply. Neither side requested an evidentiary hearing or further argument. On November 23, 1987, the trial court ruled that the lis pendens filed by plaintiffs' attorney was groundless in that it had been filed in an action where the only relief sought was monetary damages and that the filing contained a material misstatement of plaintiffs' actual claims with respect to the trustee sale. The trial court granted defendants' judgment against plaintiffs in the amount of $5,000 under A.R.S. § 33-420 and judgment against their attorney Richard N. Brandes for $2,762 in attorney's fees pursuant to A.R.S. § 12-349.

Following the above ruling, defendants lodged a form of judgment with the trial court tracking the above findings, but also including Rule 54(b) language. Overruling plaintiffs' objections, partial final judgment with such language was entered on January 8, 1988. This appeal ensued.

We first consider appellants' contention that the trial court erred in directing the entry of final judgment pursuant to Rule 54(b), Arizona Rules of Civil Procedure. Relying on three decisions of this court that criticized the routine or indiscriminate use of Rule 54(b), appellants argue that the trial court abused its discretion in making a Rule 54(b) determination in this case because this is not an "exceptional" case and appellees would not be harmed if they were required to await the conclusion of the litigation before entry of a final judgment. See Pulaski v. Perkins, 127 Ariz. 216, 619 P.2d 488 (App.1980) (Rule 54(b) power should be used only "in the infrequent harsh case"); Watson Construction Co. v. Amfac Mortgage Corp., 124 Ariz. 570, 606 P.2d 421 (App.1979) (Rule 54(b) authority to be used "sparingly" in cases with interrelated claims and counterclaims); Hill Brothers Chemical Co. v. Grandinetti, 123 Ariz. 84, 597 P.2d 987 (App.1979) ("too much liberality in this area on the part of trial courts tends to aggravate rather than alleviate the confusion of issues within a complex piece of litigation, as well as undermine our judicial system's policy against piecemeal appeals." 123 Ariz. at 88-89 n. 5, 597 P.2d at 991-92 n. 5). Appellants' reliance on these decisions is misplaced. Both Hill Brothers and Watson Construction Co. concerned interrelated claims that were not appropriately the subject of separate appeals. Moreover, in Continental Casualty v. Superior Court, 130 Ariz. 189, 191, 635 P.2d 174, 176 (1981) our Supreme Court, following Curtiss-Wright Corp v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 1465, 64 L.Ed.2d 1 (1980), noted that "a claim is separable from others remaining to be adjudicated when the nature of the claim already determined is 'such that no appellate court would have to decide the same issues more than once even if there are subsequent appeals.' " Concerning Pulaski, Watson Construction Co. and Hill Brothers Chemical Co., the court stated:

Notwithstanding these admonitions, it is also possible for a trial court to abuse its discretion by not permitting 54(b) language in granting summary judgment when the claim involved is clearly separate and distinct from the remaining claims and the possible injustice of delay would be avoided by entering judgment and making an immediate appeal available.

Id. 130 Ariz. at 192, 635 P.2d at 177 (emphasis in original).

The trial court did not abuse its discretion in making a Rule 54(b) determination in this case. Although this matter concerns multiple claims and multiple parties, appellees' claims with respect to the lis pendens were clearly separate and distinct from the claims still pending, and there is virtually no likelihood that any appellate court would be faced in a subsequent appeal with deciding the same issues now before this court. There was no just reason for delaying the finality of appellees' judgment.

We next examine plaintiffs' contention that their action was one "affecting title to real property" within the meaning of A.R.S. § 12-1191, and that the notice of lis pendens was therefore properly filed and recorded. The superior court has jurisdiction to quash a notice of lis pendens improperly filed under A.R.S. § 12-1191. Kelly v. Perry, 111 Ariz. 382, 531 P.2d 139 (1975).

Several recent cases from Divisions One and Two of this court illustrate the scope of A.R.S. § 12-1191. Because that statute permits the filing of a notice of lis pendens only in an action "affecting title to real property," a notice of lis pendens filed in an action seeking only recovery on a debt is void, even where the plaintiff has applied for a pre-judgment attachment of the defendant's real property. Mammoth Cave Production Credit Association v. Gross, 141 Ariz. 389, 687 P.2d 397 (App.1984). In Tucson Estates, Inc. v. Superior Court, 151 Ariz. 600, 729 P.2d 954 (App.1986), plaintiffs were owners of lots in a development associated with a golf course. Their rights to their lots included the right to use the golf course. The defendant developer also owned and sought to develop a...