*1 A. ties are all file in Yes. directed to memoranda support attorneys of their claim for fees Q. you So sustained—all of those en- opposition in and/or to the claims of the attorney’s tities sustained fees from the parties party attorneys other or fees. underlying action as well as this current may may attorneys case, The court not award declaratory what we’ve called the parties. fees to certain of judgment— Absolutely. A. part, Affirmed in reversed and modified Q. —action. in part remanded.
If the breach of contract claim had been HATHAWAY, J., B. and ROBERT BU-
dismissed then this evidence would have CHANAN, Superior Judge, concur. Court been irrelevant and immaterial. The fact objection it in that came without such fur- having NOTE: Hon. Lawrence Howard ther convinces us that this issue was still in matter, recused himself this Hon. Robert the case. B. Buchanan was called to sit his stead trial, After the conclusion exten- participate in the determination of this memoranda were filed. The court sive decision. entry against minute then found
appellants proposed and directed that find-
ings and conclusions be The submitted.
findings jointly and conclusions submitted defendants, finally which were court,
adopted by the trial contained con- appellants clusions of law that the had a P.2d 815 defend, duty duty was breached and they were liable to the insureds for all LAWTER REAL CECIL ESTATE expended defending underlying sums SCHOOL, INC., an Arizona actions, including attorneys court costs and corporation, Plaintiff-Appellee, appellants pro- objected fees. The to the v. posed saying: conclusions “... counsel & TOWN COUNTRY SHOPPING CEN understanding the court has CO., LTD., Defendant-Appellant. TER directed a verdict the insureds on assignment this claim virtue of their TOWN COUNTRY SHOPPING policies judgment the insurance cred- CO., LTD., CENTER Third objection itors.” This is different than Party, Plaintiff-Appellee, they appeal. now make on Nevertheless gave opportunity this the trial court an objections consider all since their memo- TRANSAMERICA DEVELOPMENT support objections they randum in of their COMPANY, Party, Third that the claim do contend was dismissed. Defendant-Appellant. obviously
The trial court believed that the Nos. 1 CA-CIV CA-CIV dismissed since the final claim had been judgment Arizona, the award. we Appeals contained As Court of have stated we believe the trial court could Department Division D. properly arrive at that conclusion. Dec. parties requested The the court have all attorneys appeal pursuant to allow fees on 21(c) Appellate
to Rule of the Rules of Civil
Procedure, 17A All are di- A.R.S. to file a
rected statement of the amount
claimed for such fees with their statement 21(a). pursuant par-
of costs to Rule
Mohr, Hackett, Pederson, Blakley & Ran- dolph, Pederson, P.C. Arthur W. Charles Kelhoffer, Phoenix, I. for Town Country Co., Shopping Center Ltd.
Murphy Brown, by Bellamy & Posner K. Phoenix, for Development Transamerica Co. Cracchiolo,
Burch & P.A. Edwin C. *4 Bull, Burch, Frank Haze Arda S. Ruther- ford, Phoenix, for plaintiff-appellee, Cecil School, Lawter Real Estate Inc. OPINION OGG, Judge.
These appeals consolidated arise out of a lease by plaintiff- entered into appellee, Cecil Lawter Real Estate School (Lawter) party and third defendant-appel- lant, Transamerica Development Company (Transamerica).
Prior discussing legal to the issues presented, giving we review the facts rise appeals. September to these On wife, Cecil B. Lawter and his Isabelle Law- ter, entered into a lease with Transamerica, through vice-president, its Don Owen. The terms of the lease were negotiated by Cecil Lawter and Velma Ludtke, assistant secretary project and manager of Transamerica. The 1970 lease provided that Lawter would lease from Transamerica premises certain located in the Country Shopping Center Road, Phoenix, 2095 East Camelback Arizo- parties agreed na. The that Lawter would pay per a “fixed minimum rent” of $742.88 month, utilities, charges plus additional for common area maintenance and other ex- penses. During the time the 1970 lease effect, charges the additional fluctu- $1,010.01 per ated and $881.09 between month.
Eventually a second lease was executed between Lawter and Transamerica on Feb-. $1,566.34 per “FIXED RENT: again, Cecil Lawter MINIMUM ruary 1972. Once lease, in the ...” Further on clauses negotiated Ludtke the terms of month Velma and required would signed provided that Lawter be by lease was 1972 lease. The Transamerica, pro a pay, on demand Lawter and Don Owen behalf Cecil real tax increases of all estate heading portionate share Transamerica. Under , imposed2, propor tax any 1 rent LEASE PROVISIONS “FUNDAMENTAL furnished3, EXHIBITS”, provided: tionate share of the utilities lease AND excise, Any Taxes. 8.2. in Real Estate Taxes. SECTION 8.3 Excise 1. SECTION Increases transaction, privelege or "basic as used in this section tax now The term taxes” sales or [sic] aggregate by any government gov- estate taxes and imposed means of the real or hereafter assessments, separately taken allocable agency upon Landlord and attributed ernmental year gener- under an accrual basis charges rent or or to or measured other may ally accepted accounting principles, which prorations payable by paid Tenant shall or assessed the full tax assess- be levied along rent Tenant in to and with the addition year following commencement of the ment payable otherwise hereunder. (a) buildings Shop- Lease Term all ping Center on commencement the Lease shall 3. SECTION 11.1. Utilities. Tenant buildings Term and on the land promptly public pay utilities for all other situated, (b) parking are and accommo- rendered and related services or furnished (but Shopping areas in the Center dation Term, premises during including, Lease parking the extent that and accommodation to, water, gas, electricity, tele- but not limited areas have not been included in Section 13.3 hereof). charges. phone, in- and sewer Landlord any re-registering meters and stall collect the real Should estate taxes assessments Tenant, charges making re- all from aforesaid any year payable Landlord in with *5 public utility company proper or turns to the land, buildings, respect parking to such and and unit, governmental provided that Tenant shall accommodation as exist on the com- areas charged would be not be more than rates it mencement of the exceed Lease Term the basic charged if direct for the same services furnished taxes, excluding any increase in such taxes or companies govern- premises by to the such or improvements assessments is the result of mental units. Shopping in or additions to the Center made provide nec- and maintain the Landlord shall by any either Landlord of or lessee Landlord conduits, wires, mains, essary to and cables after the commencement of the Lease Term bring electricity premises. to If water and (other Tenant), by than those made Tenant shall electricity, supply to with Landlord should elect Landlord, demand, pay accompanied meters, re-registering shall or without Tenant proof by satisfactory that such taxes or assess- purchase requirements If from Landlord. its Landlord, paid by ments have been an amount installed, re-registering are not Tenant meters portion equal to that increase of such as the pay electricity for an amount shall to Landlord premises total floor area of bears the total charge by applying to be to the total determined Shopping net rentable floor area in the Center by public utility compa- billed to the Center time at the such tax or assessment shall become unit, ny governmental by portion or reduced payable. copy any computa- due and A such applicable parking and to the accommodation shall be tion furnished Tenant. areas, a numerator fraction the of which is any In the event taxes or assessments are wattage premises total in the and the connected improvements on additions levied in or to the aggregate is the of the denominator of which Shopping by Center made either Landlord or wattage connected in the total rental area in the any tenant therein after the commencement of Center; provided if receive that Landlord shall Term, the Lease which taxes or are assessments preferred quantity rate or discount from the separate- excluded from basic taxes and are not unit, governmental public utility company or ly are assessed but included within the taxes or preferred rate or inure to such discount shall levied assessments or assessed entire Landlord, billing though even Center, the benefit of equitable Shopping then a fair and allo- only a net to Landlord reflects amount. of such or assessments on said cation taxes SECTION 11.2. Discontinuance Service improvements or so made after the additions Payment any Term, Non-Payment. for and all wa- Lease one commencement of the for ter, gas, electricity, and hand, hot cold air used Shopping and the balance of the Center hand, be Tenant and furnished Landlord shall improvements, on the other shall be (10) allocation, monthly days and within ten made making weight due made. presentation of bills Landlord to Tenant. given to which determine the factors shall discontinue, Landlord cut off without property taxes or real assess- the amount water, Tenant, gas, electricity, heated question respect all notice water, with such im- ments water, steam, air, hot Shopping and cold provements and to the Cen- additions chilled any during any pe- provisions whenever and this Lease. other service ter and to the answer, proportionate and a share of common area its affirmatively Transamerica charges.4 raised the defense of the statute of limita- respect tions with to the breach of warran- accepted monthly Transamerica Lawter’s ty claim. $1,566.34 checks the amount of from prop March, of the lease until the In February commencement Town & erty acquired by defendant-appellant Country Lawter, was respectively, filed Country Shopping Compa Town & Center summary cross motions for judgment. (Town December, ny, Country) Ltd. denied, & & Country’s Town motion was Country accept 1972.5 Town & thereafter while Lawter’s motion granted. was $1,566.34 subsequently ed Lawter’s checks of trial court entered findings of time, January, fact, until 1977. At that Lawter conclusions of law and its formal Country was notified judgment. Country’s Town & that Law Town & motion for a responsible denied, Country’s ter was for Town & new trial giving was rise to the supplying premis actual costs of Lawter’s appeals first of the two before us. electricity with es common mainte Country’s As concerns Town & par- third Country nance. Town & demanded that ty against Transamerica, claim both pay arrearages in the amount of filed cross summary judgment. motions for charges for rent and other $154.94 Town & motion was denied and payment for of Lawter’s share of $668.86 granted. Transamerica’s was Town & property pay taxes. Lawter refused to the Country trial, filed a motion for new requested and subsequently, sums on Au granted. Transamerica then filed a 15, 1978, gust filed an action for declarato appeal giving notice of rise to the second ry against Country. relief Town appeal before us. Country subsequently & counterclaimed declaratory against relief Lawter. TOWN & COUNTRY’S APPEAL August, Town Country & filed a appeal We first address the taken party complaint against
third
Transameri- Town &
from the trial court’s or-
ca,
that,
claiming
if Lawter was successful
der granting summary judgment in favor
in its action
Town
Country,
denying
Country's
Lawter and
*6
“Transamerica has breached its warranties motion for summary judgment. The trial
agreements by failing
and
to disclose
court concluded
that the lease
amendments and modifications to the lease
ambiguous
as a matter of law and
agreements
that,
and additional
evidence,
between Trans-
considering
after
extrinsic
it
Lawter,
america and
which have resulted in was established as a matter of law that
damages
additional costs and
to Town
obligation
& Lawter’s rental
under the 1972
Country.”
$1,566.34
complaint sought recovery
The
per
lease was
month. The trial
any costs,
from
damages
Transamerica for
properly
court also concluded that Lawter
judgments
or
suffered
Town
timely
&
exercised the second of three
action,
five-year
Moreover,
as a result of Lawter’s
as well
options.
as
renewal
attorney’s
that, subject
reasonable
fees and costs.
good
trial court held
faith
service,
rent,
(if
riod for which bills for the
or
are
tection thereof
fire
and to the extent
properly paid by
Tenant.
policing
protection
pro-
that such
fire
is
and/or
vided),
gener-
as determined in accordance with
4. SECTION 13.3. Tenant’s Share
Costs. In
ally accepted accounting principles and allocat-
rent,
percentage
addition to fixed and
Tenant
any particular
ed to
Lease Year on the accrual
demand,
pay, upon
shall
but no more often than
accounting____
method of
month,
proportion-
once each calendar
Tenant’s
expenses
every
ate share ... of all costs and
appears
shopping
may
kind and nature
It
that the
center was actual-
paid
as
be
or incurred
during
operat-
ly
initially
Country Shopping
Landlord
ing, managing,
the Lease Term ...
sold
to Town
lighting,
Center,
equipping,
repairing,
assigned
Inc.
It was then
or sold to
areas,
replacing,
maintaining
the common
Partnership, which
as-
Creative II Limited
then
services,
common facilities and related
and in
Country,
signed it to Town &
Ltd.
policing
Shopping
affording pro-
Center and
pretation
negotiations
agreement,
question
Lawter had
of an instrument is a
five-year
indepen-
re-
law to be
this court
right
to exercise a third
determined
which,
exercised,
dently
would run
of the trial
newal
if
court’s determination.
Koerner,
493,
through
Polk v.
Ariz.
533 P.2d
December
(1975);
Students,
supra.
Associated
is
Country raises several
Town &
judg
pertaining to the trial court’s
sues
An
ambiguous
is
if the
Lawter. We will discuss
ment in favor of
language
parties
used
can reason
each,
raised
though not
the order
ably
be construed more than one sense
considering
Country.
we are
Since
and such construction cannot be deter
proceeding, we must
mined within
four corners of the instru
light
and evidence in a
most
view the facts
Students, supra.
ment. Associated
party against
whom sum
favorable to
agreement,
whole,
lease
considered as a
was entered.
mary judgment
Insur
Gulf
clearly
unambiguously
does not
set
Grisham,
126 Ariz.
Company
ance
rights
parties
forth the
of the
as concerns
(1980);
Alongside this clause the have ini a contract Once is determined to be tialed, indicating recognized that both dele ambiguous, (parol) extrinsic evidence Thus, tion of the word “minimum”. purpose be resorted to for the of ascertain provides for a “fixed rent” of ing meaning. real its Associated Stu $1,566.34 per month. The “fixed” word dents, Thus, supra. subject change defined as: “not or fluc claim that the trial court erred in consider tuation”. WEBSTER’S THIRD NEW IN ing parol evidence fails. (1969). TERNATIONAL DICTIONARY 861 However, lease, further into the there are Since we have determined that providing adjustment clauses ambiguous point the lease is taxes, rent based increases utilities monthly paid, rent to be it becomes neces expenses.6 or maintenance Based sary ambiguity by to resolve the consider inconsistencies, these the trial court found *7 ing agree matters outside the written lease ambiguous. agree. We Builders, Fairway ment. Inc. v. Malouf Inc.,
The
124 Ariz.
Company,
initial determination
of Towers Rental
242,
agreement
ambiguous,
(App.1979).
whether an
534 appropriate. Fairway rent, eluding space tax, Build- rental common Cf. ers, supra. electricity area maintenance and is fixed $1,566.34 per month.
We consider now the evidence america was fixed at agreed that Lawter’s obligation to Trans trial court. Cecil Lawter's affidavit states presented Owen and Frank Thurman were before the davits of Cecil he, Country Velma Ludtke and Don Owen to resolve the Lawter, claims that Cecil Lawter’s $1,566.34 Velma ambiguity. Ludtke, per month. Affi Don tion for all items is fixed at month, month” means that lease that “FIXED lief 16. It [*] when I (emphasis was [*] signed my understanding [*] added) RENT: our school’s February [*] $1,566.34 $1,566.34 [*] 14, and be- obliga- [*] per per affidavit she, contains amounting statements Velma Ludtke’s affidavit states that conclusions, “mere legal conclusions, agreed Cecil Lawter and Don Owen had opin speculative comments, ions and pay which that Lawter would a fixed rent of would $1,566.34 not be month, admissible in a trial.” per See which included “all 56(e), Rule Arizona Rules of Civil Proce charges”. again makes claim, dure. In making its Town & Coun the claim that the affidavit state contains try 17, cites paragraphs 18 and 29 of Law conclusions, amounting opin ments to mere ter’s affidavit.7 It is para true that these speculative ions and by citing comments graphs are couched in terms of Lawter’s 19, 20, paragraphs 21 and 33 of Ludtke’s opinion or pertaining conclusion to the agree 19, affidavit.8 paragraphs We agreement and should not have been opinions legal and 33 constitute considered the trial ruling court in part conclusions on the of Velma Ludtke However, motion. should not have been considered the remainder of Lawter’s affidavit from However, trial court. as with Lawter’s legal Lawter draws his conclusions affidavit, the remainder of the affidavit opinions, properly was considered. properly considered the trial court per remainder of Lawter’s affidavit pertains since it to the intent and actions tains to the intent of the at the time parties contemporaneous to execution the lease was particular executed. Of rele of the lease. While it is true that Velma paragraphs vance are pro and 16 which authority Ludtke did not have the sole vide: thereto, execute leases or amendments she Ludtke, 14. I did authority negotiate Owen and were all have the ful- that ly Transamerica, agreement prepare and in leases on behalf of informed full items, obligation
our school’s present for all in- and did inso case. Both Cecil 7. Transamerica lease month. $1,566.34 per obligation, gated excess Real Estate Ludtke, Don Owen and me. amount ment allows our school lease instrument tween Transamerica tion of the 29. 19. 17. expresses to [******] In If the pay for all $1,566.34 per my opinion, my opinion, excess of my and the Cecil Lawter Real Estate month” means that our school’s the February *8 School, items, opinion, is an incorrect documenta- $1,566.34 Country any is fixed at and the Cecil Lawter which was reached be- our school is not obli- the month. Inc. to be February 1972 lease instru- "FIXED RENT: reached between through per $1,566.34 charged any month, amount 14, Velma 1972 per in School, Inc., fixed at and me that Lawter’s tax, common area maintenance and electrici- ty- than RENT: Lawter to be tween Transamerica documentation of $1,566.34 1972 lease and 33. 20. $1,566.34 per properly prepared $1,566.34 $1,566.34 [******] If the $1,566.34 per recently my opinion, per that Lawter’s through charged any February month, per per month. firmly reviewed month for month. Don and the Lawter School. rental, month” the written lease was Lawter owes no more believe that "FIXED and is an incorrect rent, Owen, amount 1972 lease allows space for all expresses February Cecil Lawter all reached be- in excess of rent, items, charges, rent our
535
However,
a third affidavit executed
have stated in their
Lawter and Don Owen
provides
pertinent part:
in
present
Don Owen
that Velma Ludtke
affidavits
negotiation
in the
and exe-
participated
and
executing
I
this third Affidavit to
am
Although
did not
18,
cution of the lease.
she
any
my May
1981
up
clear
confusion
authority
contractually bind
have the
to
testimony
My
is:
Affidavit
cause.
Transamerica,
join
she did
in the execution
(a)
Ludtke did not have
sole
Velma
fact that
lease as is evidenced
amend-
authority
execute leases or
to
appears
along
signature
her
However, Mrs.
ments
thereto.
on behalf of Trans-
with that of Don Owen
authority
include the au-
Ludtke’s
did
america.
develop
[sic], negoti-
dintele
thority to
prepare
tenants and
ate leases with
20
the affidavit is not de-
Paragraph
authority
had the
leases. She also
in
upon
fective
Ludtke’s statement
based
“Lawter,
prepare and deliver documents
12 that
and I
paragraph
Owen
clarified,
amended,
rather than
lease
a
agreed'
pay
that Lawter would
fixed
clarifying
Documents
lease
monthly
charges, including
rental for all
terms.
my signature.
space,
require
common area maintenance
did not
rental
terms
This,
electricity”.
plus the fact that
and
(b)
spending
I
an hour or more
recall
prepared
Ludtke affirmed that she had
negotiations
in
with Cecil Lawter
lease, provides a sufficient basis for her
the final
Velma Ludtke to iron out
paragraph
statement in
14,
February
1972
details of
lease.
However, I do not recall the details of
court also had
it three
The trial
before
negotiations
our
session.
president
of Transamerica vice
affidavits
(c)
in
affidavit,
Any
my May
statements
In his second
dated
Don Owen.
Owen,
my
18,1981,
understanding
in
Affidavit as to
May
addressing the 1972
terms, conditions,
lease,
agreements
or
states:
obligations concerning common area
I
I
At no time did understand nor do
expenses,
utilities,
electricity,
taxes or
currently understand that Lawter was
other matters are not based
actu-
required
pay
the actual common
al recollection of fact.
utility
expenses, electricity
area
ex-
penses
actually
or taxes
incurred
As Town &
has itself
landlord and attributable to Lawter as
out,
56(e),
pointed
Rule
Arizona Rules of
in
At no time
defined
the lease.
have
Procedure, requires
Civil
that affidavits
provisions in
understood that
supporting
opposing summary judgment
regarding taxes as set forth in Arti-
personal knowledge,
“shall be made on
VIII, utility
in
cle
services as set forth
shall set forth facts as would be admissible
areas,
XI and common
their use
Article
evidence,
affirmatively
shall show
XIII
charges as set forth Article
competent
testify
that the affiant is
deleted from the lease.
were
the matters stated therein.” See Portono
Wilkinson,
state-
It
inferred from the above
va v.
128 Ariz.
627 P.2d
can be
lease,
Owen,
(1981).
executing the
Owen in his
has
ment that
when
third affidavit
previous
rent made it clear that his
statement
did not intend that Lawter’s
$1,566.34
peri-
concerning
was to be
execution of the lease is “not
be “fixed”
but
actual ex-
of fact.”
odically adjusted as the lessor’s
based
actual recollection
personal knowledge
he
penses
appear
increased.
It would
Thus
has no
negotiation
with those
or execution of the lease
Owen’s affidavit would conflict
Ludtke, thereby
opinions
pertaining to
Lawter and Velma
his
or conclusions
of Cecil
executing
presenting
genuine
of material
the intent of the
issue
fact
concerning
parties’
executing
intent in
lease would not be admissible
evidence.
required to
lease,
entry
summary Accordingly, the trial court was
precluding
Westcor, Inc.,
disregard
previous affidavit as con
judgment.
Nicoletti v.
Owen’s
See
(1982).
terms of the lease.
Ariz.
Thurman was to the Sales, Darner Motor Inc. v. Universal Un- negotiations or execution of the lease. His Group, 140 Ariz. derwriters Insurance actions in measuring once Lawter’s 383, 393, (1984). 682 P.2d utility usage, best, at corroborate Lawter’s Additionally, Country argues claim that its rent is fixed. Thur signed by that since the document was not properly man’s affidavit was nonetheless Transamerica, representative it should in ruling considered the trial court not have been considered the trial court. motions. provides perti- affidavit Velma Ludtke’s part: nent Also before the trial was a court or, my request, my secretary document entitled “AGREEMENT” which prepared page the one document labeled reads: “Agreement” which itemizes the ele- agreed It is understood and $1,566.34 monthly ments of the fixed page 1 rent shown on of the lease fixed rent. 1, 1972, effective March between Cecil page The one document labeled School, Inc., Lawter Real Estate “Agreement” neither nor modifies varies Development Company Transamerica from our intent and the terms of our following: based on the agreement but affirms and clarifies the tax) $1,333.34 (plus Rent sales Owen, intent of Lawter and me and the Common Area 125.00 $ February terms Lawter’s Electric $ 108.00 lease. $1,566.34 Total
537
granting of a
reviewing
terms
clarifying lease
27. Documents
must
signatures
repre-
summary judgment,
of
motion for
we
require the
did not
manage-
light
favor
of Transamerica’s
view the evidence in the
most
sentatives
party against
ment.
whom the motion
able to the
granted
give
party
the bene
was
such
Thus,
acknowledges that she
Ms. Ludtke
may
fit of all favorable inferences
prepared at her
prepared, or had
either
reasonably be drawn therefrom. Wisener
direction,
also states
the document. She
(1979);
State,
Ariz.
cuting the lease. The written lease
jurisdictions
While some
have held that
but is reformed to reflect the
intent of
true
option
similarly
clauses worded
to the one
parties.
enforceable,
now before us are
see Moolen-
Town
Lawter
Inc.,
assertion that
aar v.
Companies,
Co-Build
354
F.Supp.
(D.V.I.1973);
is “bound
the terms of the written
980
State Road De-
noted,
previously
lease” also fails.
partment
Theaters, Inc.,
As we
Tampa Bay
v.
ambiguous
lease was
on the issue of
(Fla.App.1968),
Town &
clause
Country also makes
that future rent
is to be
“subject
negotiation
assertion that it is a
to
purchaser
agree
bona fide
and mutual
for value without
ment” is too
notice and therefore
uncertain and indefinite to
enti
tled to enforce
enforceable
Ripps
the lease as written. Al
under Arizona law.
Mueller,
though
159,
Ariz.App.
the lease “as written”
21
ambiguous
539 (Tex.Civ.App.1966). 941 find that the trial court did not 406 S.W.2d We awarding attorney’s its fees. covenant is violated at the time the instru- err in clearly conferring arose out of contract and ment it is delivered. Powell on The action (1982); See A.R.S. Real party. Thompson Property, Lawter is the successful § § § Moreover, 12-341.01(A). (1962). Property, 20.3 of Real party provides prevailing that “the Therefore, any breach of war attorney’s shall be entitled to reasonable ranty part on the of Transamerica could Attorney’s properly fees were fees.” December only have been made on awarded. original assignment. the date of the *12 necessarily disposition Our of this case It was on that date that the statute of rejects Country’s Town & claims began to run. Town & Coun limitations improperly trial court denied the relief re- try’s party complaint third filed quested improperly in its counterclaim 1979, in against August, Transamerica denied its motion for a new trial. years more than six and one-half after the began statute of limitations to run. A.R.S. TRANSAMERICA’S APPEAL § applicable provides 12-550 is Transamerica asserts that Town & Coun- brought years action must be within four try’s warranty claim based breach of Thus, after the cause of action accrues. is barred the statute of limitations. We Country’s warranty Town & breach of agree. claim is barred the statute of limita Country’s warranty Town & claim is tions. 9(d) upon paragraph based of Transameri- Country Town & also asserts that Trans- assignment Country Shop- ca’s to Town & para- america be held liable under Center, Inc. ping provides: which “the As- graph assignment provides 8 of the signed Leasehold is free and clear of all pertinent part: in liens, mortgages, encumbrances and tenan- subleases, respect Assignor With to said except those ‘A’.” cies shown Exhibit indemnify Assignee shall and hold 17 “A” Item of Exhibit noted that against harmless all loss or from tenant subleases set forth in Exhibit “B” damage, including attorneys’ reasonable excepted were included as encumbrances. fees, resulting from claims or causes of “B” shopping Exhibit listed all of the cen- prior arising to the date recor- action assignment. ter tenants as of the date of Assignment; dation this ... (empha- The sixth tenant listed was Cecil added) sis Thus, Real Estate School. Town & Coun- try’s claim is based a covenant that, by Country’s It is Town contention Downtown against See encumbrances. Country failing to inform Town & Vorbeck, Parking Company, Inc. v. 524 lease, the Lawter Trans- “amendment” of also, see (Colo.App.1974); P.2d 629 20 Am. Country america caused Town & to be bur- § Covenants, Conditions, Etc., Jur.2d 81 agreement. dened with an undesirable lease (1965). indemnity provi- As we read above sion, protect designed
A covenant
it is
Town & Coun-
encum
praesen
brances constitutes a covenant in
parties arising
of third
try
from claims
breached,
all,
ti and is
acquisition
prior
if at
at the moment
to their
of the Town &
County
v.
center. See Jacobson v.
Fechtner
Lake
Sav
Country shopping
it is made.
Association,
Corporation,
128,
ings and Loan
5 Crown Zellerbach
Ill.2d
273 Or.
66
252,
15,
(1975).
(1977); Thomp
designed
It is not
Ill.Dec.
540 HAIRE,
If thé
had intended the
Judge, concurring
part;
clause to
in
dis-
apply
damages
party
senting
part:
suffered
one
in
other,
directly
activity
from the
of the
I concur in the result reached
“ * * *
provision
would have read
for majority
concluding
agree-
that the lease
* *
“* * *
*,”
any claim
rather
than
provide
ment does not
an enforceable re-
* * *”
any
(emphasis
origi-
claim
from
option
period extending
newal
for the
from
nal)
1,
January
through
December
ant addition to and with KLEINSCHMIDT, J., payable hereunder.” This form concurs. otherwise by parties.9 majority’s subject the that the lease language was altered conclusion § form, only requires its altered 8.3 not My purpose in ambiguous. is pay that excise meas the tenant such taxes making the demon- above observations is to tenant, paid ured rent the but has been strate that once a determination might pay also to such taxes be there as. ambigu- made that the lease imposed after on the landlord reason longer to in- subject ous and therefore no payment the tenant to the landlord matter of terpretation by the court as a charges pro-rations.” “other or From law, flowing various conflicts from the pro- charges the addition of this “other differing inferenc- provisions lease language, rations” inference an can might therefrom make es which be drawn parties contemplated drawn that inappropri- summary judgment remedy future, payments would be made ate. rent, tenant in addition specifi to the fixed cally payments in the nature of the “other Additionally, conflicting inferences note charges pro-rations” provided might which be drawn from the various taxes), (prorated VIII increase Article opinion my exhibits and affidavits which in (prorated Article XI in utility increase ex preclude summary entry likewise penses) (prorated XIII in Article judgment. this dissent I will men expenses). crease in common area The ex might tion the inferences be drawn istence of the initialed alteration also total C, by a of fact in favor of T trier ly pro refutes Lawter’s contention that the party against whom simply visions “boiler-plate,” were and not granted.10 binding by considered agreement. majority “Agreement” mentions an (one February day dated subse-
Additionally, important it *14 phrase quent agreement), “fixed minimum rent” to the the lease date of considered in its in context I of the agree- Article lease the into which breaks down “fixed rent” ment. The lease form is shopping for a rent, (2) (1) $1,333.34; components: three center contemplates lease and that ten- the electric, area, $125; (3) $108, and common ant will abe retail sales Ac- merchant. totalling $1,566.34, the fixed rent. Assum- cordingly, contemplates the lease pro- and ing the there- ambiguity the of lease and categories vides for two of rent: A “fixed admissibility “Agreement”, fore the of this minimum rent” might which be increased in an could therefrom inference be drawn (but decreased) by not “percentage a rent interpretation urged favor the T of lease rate” based retail sales volume. C, arguably & since there be no would here, Lawter, Since the tenant in- is not necessity of a breakdown of the total fixed sales, volved in retail strong a inference figure parts component rent into unless it can be drawn that the reason the sole for necessary was to a base considered have striking of the “minimum” word was to figure for the area common and electric party’s recognition reflect the that there prorations charge comparison purposes for necessity was no to a “minimum” establish in the event of a claimed future increase in rent would be which increased the addi- prorated expenses. these percentage tional rental. There also admitted into evidence a
Notwithstanding foregoing, the I am accept 1972, willing to the trial court’s and letter dated March used trans- for typed margin strongly 9. The is § alteration in of 8.3 be drawn therefrom which would favor change tenant, party. and the is initialed each position ap- of Lawter. If pealed judgment from had been entered after a recognize presents totally 10. I that this dissent a fact, of resolution the conflicts a trier’ of I possible slanted of the view evidence infer- My quarrel not hesitate affirm. would to therefrom, appel- wholly ences in favor of the majority’s the trial and the is with court’s usur- lant, C. I T & have not mentioned facets of pation fact-finding of the trier of fact’s function. possible might evidence and inferences which entered, lengthen erly I will not further lease to mittal of executed letter, In that a Lawter. landlord stated: this dissent with detailed discussion conflicts the Thurman affidavit and other discussed, you we “As make one opinion require my which in also remand payable monthly charges for all in check opposed for $1,566.34, trial as I total sum of and am sure resolution. payment procedures will make your this simpler.” much do, however, of the aspects I find other this a similar inference language, From disturbing sufficiently majority opinion T could be drawn that both and & require expression and a comment further $1,556.34 amount fixed C considered trial T has to the objected of dissent. & C i.e., charges”, a being rent as total “of all paragraphs court’s of certain consideration $1,333.34 (not subject change), for rent amounting to affidavit Lawter’s as charges under $125 for common area conclusions, conclusions, opin- legal “mere utility charges Article XIII and for $108 speculative which ions and comments lease, subject XI each under Article would not be admissible a trial.” separate charges change, and that these acknowledges majority paragraphs check for the conve- could be totaled one 18 and affidavit should 29 Lawter’s nience of the tenant. considered, quotes then have been but ad- paragraphs 14 and and finds them reveals for The evidence further intent of the pertaining missible as “to the years after the execution of the several time the was executed.” an at the lease lease and until T deemed increase & C costs, my this conclusion is erroneous necessary opinion increased T because of impact this regret detrimental rental invoices to Lawter were C’s $1,556.34”, certain to on future trial single conclusion is have figure not for a “rent — summary judgment practice this figure were down into rather broken a but rent, Certainly, Lawter’s in- figures for state. evidence of separate with common has Again, tent relevant once determination expenses. and electric this area the lease am- been made that arguably conduct was more con- course of However, biguous. intent interpretation T the Lawter with & C’s sistent inter- proving Lawter. is relevant than with that of pretation past or advanced him is not his conflicting infer- Additional conflicts present intent. subjective, unmanifested ences, issues, credibility are as well as *15 Rather, and intent is probative the relevant contents the conflicting found in the of his which is sometimes referred as in filed the trial various Owen affidavits intent, objective objective manifested summary Al- judgment proceedings. court acts, near the words or other conduct though none of affidavits come the Owen time formation the contract. of constituting close to models for utilization what his present statement of Lawter’s summary judgment proceedings, con- opinions, subjective unstated intent trary I position to the find majority’s do negotia- at the time of the conclusions were sufficient in them admissibility to raise Law- support of tions are not admissible in substantial factual conflicts reference to position. ter’s remedy the of reformation allowed the court, equally ap foregoing trial as to the extent of are Velma comments Ludtke’s authority agent origi- plicable paragraphs as an of certain of affidavit, Additionally, by appel nal landlord. per- there are Ludtke also attacked lant, conflicting paragraphs being quoted missible foot might inferences which said regard majority opinion. be drawn from the Thurman note 7 affidavit dis- of However, majority opinion. in the the Ludtke questioned paragraphs cussed to the affidavit, my majority apparently is a and I concludes since this dissent have in it already conclusively because opinion paragraph demonstrated 20 is admissible “pertains intent improp- to the and actions above that parties contemporaneous to execution of set lease.” For the reasons forth
above, majority this conclusion
erroneous, factually legally. both If personal knowledge
the witness has of rele facts, it
vant is those are ad facts missible, legal opin not the conclusions and
ions which the might witness draw from
those facts.11 conclusion, judg I would reverse
ment entered in favor re
mand trial on issues. In view of remand,
this I deny preju would without application
dice both for at
torney’s appeal, fees on delaying such de pending
termination disposi ultimate remaining
tion of the issues. Since the
litigation between &T C and Transamerica
is effectively terminated majority’s
disposition appeal,12 of Transamerica’s grant attorney’s
would appeal fees on
favor of Transamerica and T & C. P.2d ASSOCIATES, INC.,
FINANCIAL an Ari corporation,
zona Allan J. Norville and Norville, wife,
Alfena A. husband
Plaintiffs/Appellants, PROPERTIES, INC.,
HUB a California
corporation, Defendant/Appellee.
2No. CA-CIV 5284. Arizona, of Appeals
Court
Division
Dec. 1984. My quoted provisions paragraphs discussion other themselves and evidence court, the Lawter and Ludtke affidavits is not intended I conclude that sum- before the trial any opinion my part to indicate the trial inappropriate. mary judgment was considering parts court erred in other admissible, parts affidavits. Other were my previously indicated concurrence have support interpretation furnish majority in the reached on Trans- result sought by Lawter. It because substan- appeal. america’s conflicting tial inferences created