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Fovargue v. Singer

Supreme Court of Arizona

June 1, 1954


Page 1091

[77 Ariz. 306] Frank J. Barry, Jr., Tucson, for appellants.

Ray F. Harris, Tucson, for appellee.

UDALL, Justice.

Plaintiff Norris R. Singer brought suit against his landlords Irwin R. Fovargue and Florence H. Fovargue, seeking a declaratory judgment construing the terms of a lease, and seeking the recovery of certain taxes he had paid on personal property leased from the Fovargues. Plaintiff had judgment and defendants appeal. We shall refer to the parties by name or as lessee and lessors.

Howard and Mildred Crawford were the original owners of the property here involved, and on March 5, 1946 they leased it to Ben Malkin, Oscar Lubin and Louis Eidelberg. By mesne conveyances the interest of the Crawfords has come to the Fovargues, lessors, here, and by mesne assignments the interest of Malkin, Lubin, and Eidelberg has some to Singer, lessee here.

At the time of leasing the land was vacant and the lessees contemplated erecting and operating a drive-in cafe. After describing the premises, the lease continues as follows:

[77 Ariz. 307] 'To Have And To Hold the same to the said lessees from the 5th day of March, 1946 to the 1st day of May, 1956, and said lessees, in consideration of leasing the premises as above set forth, covenant and agree with the lessors to pay said lessors, as rent for the same, the sum of Eight Thousand ($8,000) Dollars, cash in hand upon the execution of this Lease, and to construct a drive-in cafe and fountain building at a cost of not less than $5,500.00 on said premises in accordance with plans and specifications to be agreed upon between the parties hereunto; and to place not less then $1,900.00 worth of cafe and fountain equipment in said building for the use of the lessees thereby making an expenditure of at least $7,400.00 on said premises. And that the said $7,400.00, but no more, shall be provided by the lessors from the said $8,000.00 in cash.

'It Is Agreed that all buildings and cafe and fountain equipment placed on said premises during the terms of this lease, or renewal thereof, shall become the property of the lessors, and shall be covered by the terms of this lease; that the lessees shall keep the said buildings, and said equipment in good repair, at their expense, and shall deliver possession of them to the lessors at the termination of this lease; that the lessees shall keep said premises, buildings

Page 1092

and/or equipment insured, at all times, against loss by fire, theft, storms, public liability and property damage in the principal amount of not less than $6,000, in an insurance company or insurance companies acceptable to the lessors, and naming the lessors as the insured or beneficiaries thereunder; that in case of loss by fire or destruction of said building and/or equipment, the operation of this lease shall not be affected, but the proceeds from insurance benefits shall be used towards the rebuilding or replacement of the damaged property without delay; that additions or alterations in the structure of buildings or equipment may be made from time to time by the lessees at their own expense, subject to the approval of the lessors; that the lessors shall have no obligation of expense, whatsoever, on the premises, for the term of this lease, except as expressed hereinabove; that the lessees shall not maintain any signs bearing the tradename of the lessees' business or of a size larger than 3' X 5' without the approval of the lessors; and that the lessees will keep the drive-in open for business at least during the time when the miniature golf course adjoining is open for business.' (Emphasis supplied.) We have italicized the portion which is the storm center of the controversy here.

In June, 1951, Singer acquired the leasehold interest. Soon thereafter he was billed for taxes due for the current year in the amount of $172 on the personal property situate in and used in the operation of the drive-in cafe, which personal property is admittedly the property of the lessors. The lessee refused to pay the taxes, contending it was the lessors' duty to do so, but the [77 Ariz. 308] lessors refused and the sheriff gave notice the property would be seized and sold to satisfy the tax demand, whereupon the lessee paid the taxes, interest, and costs.

Acting as his own attorney, Singer then brought suit against Fovargue in the justice court, Tucson precinct No. 1, to recover the amount of taxes so paid. The lessors proceeded upon the theory that assuming they were liable for the taxes, the lessee had paid them as a volunteer to whom the lessors owed no legal duty of reimbursement. Thus, relying upon the principles announced in Scoville v. Vail Investment Co., 55 Ariz. 486, 103 P.2d 662, the lessors moved to dismiss the complaint failure to state a claim, in that it did not allege the lessee had paid the taxes at the lessors' request. The court gave the lessee an opportunity to amend and make such allegation, but when the lessee declared he could not truthfully do so, the motion to dismiss was granted and judgment was entered in effect that plaintiff take nothing and defendants recover their costs.

Thereafter Singer retained an attorney, and in August, 1952, began this action in the superior court. Count one of the complaint sought recovery of the 1951 taxes paid by the lessee, and count two sought to have the lease construed and declaratory judgment rendered thereon that the lessors were liable for the taxes during the term thereof. After trial to the court it was declared that the lease in question properly construed did not require the lessee to pay the personal property taxes but that the lessors should pay all taxes thereon, and that the lessee should have judgment against the lessors for all the taxes paid to date.

The lessors contend that the dismissal of the prior action in the justice court is a bar to any further action by the lessee. We believe that in part this position is well taken. The legislature has provided in Section 20-708, A.C.A.1939, that 'The law governing the procedure in the superior courts regarding * * * judgments * * * and all other laws of procedure, so far as applicable and not otherwise especially prescribed, shall govern the procedure in justice of the peace courts.' There is no special law governing the effect of dismissals in the justice courts, hence the rules of civil procedure for the superior courts are to be applied. We have construed Rule 41(b), Rules of Civil Procedure, Section 21-916, A.C.A.1939, in Anguiano v. Transcontinental Bus System, 76 Ariz. 246, 263 P.2d 305, to mean that any involuntary dismissal other than for lack of jurisdiction or improper venue operates as an adjudication on the merits unless the court otherwise

Page 1093

directs. The lessee cites Wilson v. Lowry,5 Ariz. 335, 52 P. 777, and Griffith v. State,41 Ariz. 517, 20 P.2d 289, decided long prior to the adoption of our present rules, wherein we held that judgment of dismissal entered in an action after demurrer was sustained to the complaint did not bar a second suit if the demurrer went only to the merits [77 Ariz. 309] of the pleading. The lessee contends this rule still applies and that a dismissal for defective pleading does not ...

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