Anna M. JOSEPH, Appellant,
Mary F. TIBSHERANY, executrix of the Estate of George F. Tibsherany, deceased, and Mary F. Tibsherany, a widow, individually, Appellee.
Rehearing Denied Sept. 26, 1960.
[88 Ariz. 206] Wilson & Wilson, Phoenix, for appellant.
Moore & Romley, Phoenix, for appellee.
ROSS F. JONES, Superior Court Judge.
Plaintiff (appellant) instituted action against the defendant (appellee) as executrix of the estate of George F. Tibsherany, deceased, and Mary F. Tibsherany, a widow, individually, to impress a constructive trust upon certain property situate in Maricopa County, Arizona, known as the Coronado Hotel on North First Street, Phoenix, Arizona. The complaint charges that [88 Ariz. 207] George F. Tibsherany during his lifetime at various times received from plaintiff certain sums of money for the purpose of investing said sums for the benefit of the plaintiff. At the time of the trial, plaintiff was of the approximate age of sixty-six years. She was born in Lebanon, and there is ample evidence of her illiteracy in the English language. In 1918, the plaintiff, while living with her husband in Utica, New York, sent for her only brother, George F. Tibsherany (deceased), who was then fourteen years of age and living in Lebanon. Thereafter, the plaintiff educated him by sending him through four years of school.
In August, 1926, plaintiff, her husband, and decedent moved to Mesa, Arizona. The plaintiff had worked from 1909 to 1926 sewing men's suits in a factory in New York. After moving to Arizona, plaintiff's husband and the decedent opened a dry goods store in Mesa, and plaintiff gave the deceased $8,000 with which to finance his part of the store. In 1929, decedent and his partner, Mr. Joseph, divided the store, and with his interest in the store and the merchandise decedent bought a farm near Mesa, Arizona.
In 1930 or 1931, decedent traded the farm for the Coronado Hotel in Phoenix, and two houses. The Hotel Coronado is the property here in question. Before trading the farm for the hotel and houses, decedent showed the property to plaintiff and got her consent to make the trade. Subsequently he received from the plaintiff the sum of $6,000 in cash to pay off the balance of a mortgage owed on the property, and agreed with her that the hotel was to be her property, and that the two houses were to belong to him. Arrangements were made between the decedent and the plaintiff that if she would leave the hotel in his name to bolster his financial statement, he would guarantee her $200 a month income from the hotel for the remainder of her life. A short time after the hotel was acquired, plaintiff gave decedent an additional $6,000 with which to refurnish the hotel. The hotel was to be reconveyed to plaintiff for her old age, and it was implied that the same was to be done in the event that anything happened to the decedent or at such sooner time in the event he did not need the property for his financial statement.
At the close of plaintiff's case, the trial court granted defendant's motion for judgment '* * * on the ground that
the plaintiff had wholly failed in the proof of the material allegations of the complaint by any evidence, let alone any clear and convincing evidence * * *.' Plaintiff's subsequent motion for a new trial supported by affidavits of newly discovered evidence was denied, and the appeal herein was taken.
Plaintiff's assignments of error can be summarized as follows:
[88 Ariz. 208] 1. The trial court erred in granting defendant's motion for judgment.
2. The trial court erred in denying plaintiff's motion for new trial, which was accompanied by evidence that was newly discovered.
It is contended that the court erred in granting defendant's motion for judgment at the close of the plaintiff's case, and that a motion for judgment by the defendant after the plaintiff has completed the presentation of his case is synonymous with a motion for dismissal under Rule 41(b) of Rules of Civil Procedure, 16 A.R.S. The defendant, appellee, after oral argument presented a supplemental list of authorities, and relied heavily on Chadwick v. Larsen, 75 Ariz. 207, 254 P.2d 1020, in which this court held that on a motion to dismiss after the plaintiff was rested his case, the trial court has the power to weigh evidence, and need not completely disregard conflicting evidence or view evidence in the light most favorable to the plaintiff. The Chadwick case, supra, was decided by this court in March, 1953, and is not applicable to the case at bar because on June 18, 1955, this court amended Rule 41(b) as follows:
'* * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. In an action tried by the court without a jury the court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff at the close of the plaintiff's case, the court shall, without prior request, make findings as provided in Rule 52(a). * * *' (Emphasis supplied.)
This amendment conforms with the amendment to the Federal Rules of Civil Procedure promulgated in 1948 (except for the underlined phrase 'without prior request'). The portion of Rule 52(a) with which we are concerned in this case is as follows:
'In all actions tried upon the facts without a jury or with an advisory jury, the court, if requested before trial, shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. * * * Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of witnesses. * * *' (Emphasis supplied.)
[88 Ariz. 209] Rule 52(a) required the trial court to find the facts specially and state separately its conclusions of law thereon, only where it has been so requested before trial. Rule 41(b) required the trial court to make findings as provided in Rule 52(a) 'without prior request', thereby negating that portion of Rule 52(a) which demands special findings only where the trial court has been so requested before trial.
Rule 52(a) of Arizona Rules of Civil Procedure differs with Rules 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., in that under the Federal Rules, the trial court is required to find fact specially in all cases, even though there may have been no request made by counsel prior to trial.
The purpose of the aforementioned amendment to Rule 41(b) was to incorporate into the rule the reasoning of the Sixth, ...