DocketNumber： No. 1 CA-CIV 1694
Citation Numbers： 18 Ariz. App. 348, 501 P.2d 1189, 1972 Ariz. App. LEXIS 863
Judges： Eubank, Stevens
Filed Date： 10/17/1972
Status： Precedential
Modified Date： 11/2/2024
This appeal arises out of a summary judgment entered in the above-numbered Superior Court action. The judgment granted the plaintiffs’ prayer for specific performance. The appellees were the plaintiffs and they will be referred to as the plaintiffs or as Haumont. The principal defendants in the specific performance action were the appellant, Del Rio Land, Inc., herein referred to as Del Rio and James B. Carr as well as Christopher W. Carr, herein referred to as the Carrs. The Carrs were officers of and had an interest in Del Rio.
In this appeal Del Rio urges error in the granting of motion for summary judgment and Haumont, while resisting the claim of error, urges that in the postjudgment situation this appeal has become moot.
Prior to the events which gave rise to the specific performance judgment, Del Rio owned the land in question and executed a mortgage thereon to secure a debt evidenced by a promissory note. After the execution and recording of the mortgage Del Rio sold the land here in question at a public auction which was conducted by a professional auctioneer. Haumont was apparently the successful bidder at the auction. A dispute arose between Haumont on the one hand and Del Rio as well as the Carrs on the other.
On 31 January 1969 Haumont filed the instant suit for specific performance naming Del Rio, the Carrs, and others not material to this opinion. On 15 May 1970, in a separate Superior Court action bearing cause number C-233593, Anthony P. Pilkis and others, as plaintiffs, filed a suit to foreclose the mortgage hereinbefore referred to, naming as defendants Haumont, the Carrs, Del Rio and others. On 9 September 1970 Pilkis and the other plaintiffs in the mortgage foreclosure action received their judgment of foreclosure, which also established the amount of the financial obligation of Del Rio. The foreclosure judgment contained the usual provisions for an execution sale. The records before this Court are silent as to any appeal from the foreclosure judgment and we assume that in due course it became final.
The trial court granted a Haumont motion for summary judgment and pursuant thereto a formal written judgment was filed on 19 February 1971. In pertinent part the judgment recited as follows:
“IT IS ORDERED, ADJUDGED AND DECREED:
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“2. That plaintiffs’ purchase at public auction from defendants Del Rio Land, Inc., its officers, directors or owners, the following described real propety (sic) for the gross amount of $2600.00 per acre. Plaintiffs’ purchase is by contract which shall provide for a 25% down-payment with the balance to be paid by one hundred (100) equal monthly installments with 7% interest amortized in said monthly installments. Said monthly installments shall begin thirty (30) days following close of escrow and shall thereafter be made on or before the same day of each month until paid with the purchasers’ right to accelerate any or all payments. (description of property omitted).
“3. That defendant Del Rio Land, Inc., James B. Carr and Christopher W. Carr, President and Secretary of said corporation shall forthwith execute, acknowledge and deliver all deeds, documents, and other instruments required to complete the sale of the above described land in order to convey good and sufficient title of said land free from all encumbrances to plaintiff, to Stewart Title & Trust of Phoenix, who shall handle the escrow and collection of said sale and that defendants shall, upon close of escrow, let plaintiff into possession of the above described property.
*350 “4. Stewart Title & Trust of Phoenix upon receipt from plaintiff of the down payment and upon receipt of all monthly payments shall apply said monies to the satisfaction of the following obligations in the following order in order to clear the title to said land:
a. Payment of Plaintiff’s court costs in this action of $782.60.
b. Payment of Judgment of Foreclosure heretofore assigned to plaintiff, including interest accruing thereon.
c. Payment of all back taxes and taxes to the close of escrow including the accruing 10% interest and penalties until paid by defendant Del Rio Land, Inc.
d. Payment of any uncollected fees of Stewart Title & Trust of Phoenix assessed defendant.
e. Balance of all payments after application to above obligations to Del Rio Land, Inc.”
Prior to the entry of the judgment the proposed form of judgment was served on the attorneys for Del Rio and the Carrs who filed their exceptions thereto. It is material to the holding of the majority of this Court that the objections, which were ■overruled by the trial court, be set forth rather fully. The objections raised the following matters.
“1. There has been no finding by the Court as set forth on page 2, commencing on line 25, that Plaintiff receivéd an Assignment of Judgment in the consolidated case No. 233593. This matter is not a part of any evidence or pleadings in this matter and to include it herein would be bringing in matters outside the scope of the record.
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“3. The form of the Judgment should not include in paragraph 4, items a, b, .and d.
a. Subparagraphs a and d erroneously set forth court costs and title company fees as a lien upon the land. Inasmuch as these are not a lien upon the land, Plaintiff is not entitled to have them paid first,
b. Apparently the first mortgage has already been satisfied by Plaintiff or if it hasn’t, there has been a merger of interests that would entitle the Plaintiff to credit against the purchase price, but still allow Defendant Del Rio Land, Inc. to receive the 25% down and the balance in 100 installments of principal and interest. If the Court ruled otherwise, the Defendants would be forced to sell their land and not receive any payments for approximately 19 months hence.
“4. The form of Judgment should contain and set forth the complete terms of the contract, not just those favorable to the Plaintiff. This is especially true in a situation where there had never been a written contract between the parties. A few of the items that have been omitted are: whether or not the contract is assignable; whether the Defendants are entitled' to attorney fees in case of a default; covenants against waste; who has the obligations for paying taxes; and what would be the Defendants’ remedies on default.”
Remembering that the judgment granting specific performance was filed on Friday the 19th day of February 1971, the following dates become significant:
A formal written agreement of sale between Haumont as the buyer and Del Rio as the seller was signed by the Carrs as Del Rio’s corporate officers on Tuesday the 23rd day of February and by Haumont on the following day. On the 24th of February the escrow instructions were executed. It was not until the 23rd day of March 1971 that the notice of appeal on behalf of Del Rio, only, was served.
A comparison of the judgment on the one hand, with the escrow instructions and the agreement on the other, discloses:
The motion for summary judgment specified the price of $2600 per acre and prayed that the overall price be fixed in the judg
Objection number one urged that the record was silent as to Haumont’s ownership of the 'mortgage foreclosure judgment and objection number 3(b) raised other issues in relation to the foreclosure judgment. Yet the agreement expressly recognized the judgment, the amount thereof, Haumont’s ownership, and granted priority in the application of the proceeds of the sale.
The second paragraph of the judgment was silent as to the due date of the first and subsequent payments and the agreement was specific in this regard.
Other matters covered by objection number 3 were expressly covered by the agreement.
Objection number 4 recited that there had never been a formal agreement between the parties and recited matters which were omitted from the judgment which should be set forth in an agreement of sale. The printed form of agreement was modified by strike outs and by insertions to cover the matters which were urged in the objections to the form of the judgment.
The agreement is silent as to the seller’s preservation of its right of appeal.
The record is silent as to any threatened contempt by the trial court for non-compliance with the directives contained in the judgment for specific performance. It appears to this Court that even though the trial court overruled the objections to the proposed form of the specific performance judgment, nevertheless, further clarification might be required before a contempt citation for non-compliance could be successfully urged.
We find no provision in the judgment for specific performance which directs the execution of a formal written agreement of sale, yet, such an agreement was executed.
We know not whether Haumont, the owner of the foreclosure judgment, agreed to withhold or did withhold execution under that judgment in reliance upon or in partial consideration for the execution of the agreement of specific performance.
We concur with the opinion of West v. Baker, 18 Ariz.App. 151, 152, 500 P.2d 1139, 1140 (1972), wherein it was stated that there are occasions when “it is not inappropriate for an appellate court to consider * * * extrinsic evidence as to matters which have occurred since the filing of the appeal” and which were “not part of the record on appeal.”
The matters which relate to the position of mootness were presented to this Court by the plaintiffs by motion to dismiss the-appeal and by their brief. The documents, are not disputed but the legal effect thereof is disputed. There was no response-filed to the motion to dismiss within the time allowed by the rules governing this Court and this Court took recognition of the absence of a response in its order granting the motion to dismiss. A response was. filed on the same day that the order was. entered. Reasonable grounds for the failure to respond at an earlier date were presented. This Court vacated its order of' dismissal and did not rule on the merits of the motion at that time. This Court has not ruled upon the merits of the mootness, question prior to this opinion.
The majority recognize that there-are situations wherein an appellate court will decide a case, even though moot, where-the issues presented are of great public interest. Wise v. First National Bank of Nogales, 49 Ariz. 146, 65 P.2d 1154 (1937) ; Board of Examiners of Plumbers v. Marchese, 49 Ariz. 350, 66 P.2d 1035 (1937) ; Arizona Osteopathic Medical Association v. Fridena, 105 Ariz. 291, 463 P.2d 825 (1970); and Odie v. Imperial Ice Cream Company, 11 Ariz.App. 203, 463 P.2d 98 (1970). In the opinion of the majority such, is not the situation here.