Summary
determining that appellate court may receive evidence outside the record to establish whether appellant waived right to appeal
Summary of this case from Nevada Gold Casinos v. American HeritageOpinion
No. 2 CA-CIV 3791.
April 14, 1982. Rehearing Denied May 28, 1982. Review Denied June 22, 1982.
Appeal from the Superior Court, Pima County, Cause No. 180048, Robert O. Roylston, J.
Donald E. Gabriel, Tucson, for defendants/appellants.
Miller, Pitt Feldman, P.C. by Robert A. Fortuno, Tucson, for counterdefendants/appellees Diamond, Estes and Shedd.
Chandler, Tullar, Udall Redhair by Joe F. Tarver, Tucson, for plaintiffs/appellees.
Bilby, Shoenhair, Warnock Dolph, P.C. by Susan M. Schauf, Tucson, for counter-defendant/appellee Transamerica Title.
OPINION
This appeal arises out of litigation concerning real property in Tucson known as Rocking K Ranch. No useful purpose would be served by detailing the procedural aspects of this litigation, which gave rise to the judgment and order that are challenged on this appeal. The judgment decreed specific performance of a contract for the sale of the real property and the appointment of a receiver to take possession and control of the real and personal property comprising the Rocking K Ranch.
The sale agreement, executed in June 1979, was between the Rae group as sellers and the Estes group (Diamond, Estes and Shedd) as buyers. The Rae group, the Estes group and the Katz estate, which had consented to the sale pursuant to the sale agreement, were ordered to close and specifically perform the sale agreement forthwith. The Rae group was specifically ordered to do no act in contravention of the sale agreement or in hindrance of specific performance. The judgment recited that it constituted a conveyance of the real and personal property described in the sale agreement to the receiver previously appointed pursuant to orders of the court. The parties were directed to execute forthwith all documents and perform such other acts as might be necessary to close and specifically perform the sale agreement according to its terms.
The order appointing the receiver authorized the receiver to exercise all powers, rights and duties prescribed by law for receivers including the power to commence and defend actions relating to the sale property.
A motion to dismiss this appeal was filed by the appellees (the Estes group and the Katz Estate), claiming that appellants (the Rae group) have accepted the benefit of the rulings they challenge on appeal and thus are precluded from maintaining this appeal. In support of their motion, appellees filed various affidavits and photocopies of correspondence and documents concerning matters that have occurred during the pendency of this appeal. The Rae group, in opposition to the motion to dismiss, filed similar supporting documents and affidavits. Their position is that they merely complied with the appealed-from rulings, neither of which had been superseded.
Although generally we do not look beyond the record on appeal, where matters have occurred since the filing of the appeal which may make review of the proceedings of the lower court inappropriate, such matters may be shown by extrinsic evidence and considered by this court. Day v. Wiswall's Estate, 93 Ariz. 400, 381 P.2d 217 (1963). Our review of the various documents appended to the motion to dismiss, response and reply thereto discloses that the following occurred after the filing of this appeal. The Rae group demanded and obtained performance by the Estes group of one provision of the sale agreement which the judgment required all parties to specifically perform. One obligation of the buyers (the Estes group) under this agreement was the payment of all existing Solot judgments. Two of these Solot judgments were mortgage foreclosures upon parcels of property belonging to Rae which were not part of the Rocking K Ranch. The performance demanded and fulfilled by Estes was redemption of these properties. Therefore, a check was issued to Rae and the receiver in the amount of $31,949.99 and the properties were redeemed.
It has also been established that the Rae group has taken advantage of the appointment of the receiver by invoking the provision of the appointment order, which confers authority upon the receiver to commence and defend actions relating to Rocking K Ranch. The Rae group demanded that the receiver represent it in two other actions relating to the Rocking K Ranch whereupon the receiver filed a petition in superior court to determine whether he should comply with the demand of the Rae group. The superior court directed the receiver to represent those members of the Rae group that are corporations and trusts in two other pending lawsuits, one in federal court and the other in superior court. The receiver complied.
A party who accepts an award or legal advantage under an order, judgment or decree, waives his right to any such review of the adjudication as may again put in issue his right to the benefit which he has accepted. Finck v. Finck, 9 Ariz. App. 382, 452 P.2d 709 (1969); Busseuil v. Arizona Veteran's Service Commission, 17 Ariz. App. 379, 498 P.2d 191 (1972); 5 C.J.S., Appeal and Error, § 1354(6); 4 Am.Jur.2d, Appeal and Error, § 250; Annot., 169 A.L.R. 985.
We agree with appellees that the "acceptance of benefits" doctrine estops appellants from maintaining this appeal and that their reliance on the rationale of Del Rio Land, Inc. v. Haumont, 110 Ariz. 7, 514 P.2d 1003 (1973), is misplaced. In Del Rio, a decree of specific performance of a sale contract was involved. Our supreme court held that where the appellant, which had been unable to file a supersedeas bond, was compelled by the necessities of the situation to comply with the decree of specific performance, its compliance with the judgment did not preclude appellate review. The situation here is different. The only similarity between appellants' situation and that in Del Rio is the inability to file a supersedeas bond. The obligation to satisfy the existing Solot judgments was the buyers' (Estes group) under the sale agreement and not the sellers'. Thus the Rae group, by insisting upon performance by the buyers, took advantage of the decree of specific performance. Although they maintain they had no intention of waiving their rights to appeal, their conduct raises an estoppel. There is no question but that a review of the decree of specific performance will again put in issue the sellers' right to the benefit which they have accepted. These same principles apply to the order appointing a receiver. Appellants, by insisting that the receiver represent them in two other lawsuits concerning Rocking K Ranch, cannot now complain on appeal that the trial court erred in appointing a receiver.
For the foregoing reasons, this appeal is dismissed.
HOWARD, C.J., and BIRDSALL, J., concur.