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«IN THE COURT OF APPEALS DIVISION ONE STATE OF ARIZONA FILED: 05/31/2012 DIVISION ONE RUTH A. WILLINGHAM, CLERK BY: sls KAREN SPANN GRANDE, as ...»

IN THE COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA

FILED: 05/31/2012

DIVISION ONE

RUTH A. WILLINGHAM,

CLERK

BY: sls

KAREN SPANN GRANDE, as Personal ) 1 CA-CV 11-0148

Representative of the Estate of )

Robert A. Spann, Deceased, ) DEPARTMENT A ) Petitioner/Cross-Respondent/ ) OPINION Appellee, ) ) v. ) ) SARINA JENNINGS, a single woman; ) CLINTON MCCALLUM, a single man, ) ) Respondents/Cross-Claimants/ ) Appellants. ) __________________________________) Appeal from the Superior Court in Maricopa County Cause Nos. CV2009-051301 and PB2001-005009 (Consolidated) The Honorable Brian R. Hauser, Retired Judge

AFFIRMED

Polsinelli Shughart, P.C. Phoenix by Andrew S. Jacob Gregorio M. Garcia Attorneys for Respondents/Cross-Claimants/Appellants Lewis and Roca LLP Phoenix by George L. Paul Attorneys for Petitioner/Cross-Respondent/Appellee P O R T L E Y, Judge 1 This case asks us to resolve who owns the money found in the walls of a Paradise Valley home: the estate of the home’s former owner or the couple who owned the home at the time of the discovery. The new homeowners appeal the summary judgment granted to the estate, and claim that the funds were abandoned when the home was sold “as is.” For the following reasons, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

2 Robert A. Spann lived in his Paradise Valley home until he passed away in 2001. His daughter, Karen Spann Grande (“Grande”), became the personal representative of his estate.

She and her sister, Kim Spann, took charge of the house and, among other things, had some repairs made to the home. 1 3 They also looked for valuables their father may have left or hidden. They knew from experience that he had hidden gold, cash, and other valuables in unusual places in other homes. Over the course of seven years, they found stocks and bonds, as well as hundreds of military-style green ammunition cans hidden throughout the house, some of which contained gold or cash.

1 Robert Spann had allowed the home to fall into disrepair over the years.

2 4

–  –  –

Rafael Cuen, a Trinidad employee, discovered two ammunition cans full of cash in the kitchen wall, went looking, and found two more cash-filled ammo cans inside the framing of an upstairs bathroom.

5 After Cuen reported the find to his boss, Bueghly took the four ammo cans but did not tell the new owners about the

–  –  –

told the new owners about the discovery and the police were called. The police ultimately took control of $500,000, which Bueghly had kept in a floor safe in his home.

–  –  –

cases were consolidated in June 2009.

7 The estate filed a motion for summary judgment and argued that Jennings/McCallum had no claim to the money found in

–  –  –

inappropriate because there was a genuine issue of material fact as to whether the estate had abandoned its rights to the found money. Specifically, they assert that a jury could have found

–  –  –

funds.

2 After a bench trial in February 2011, the court determined that Grande, as the estate’s personal representative, and not Bueghly, was the true owner of, and entitled to the possession of, the found funds.

–  –  –

[Jennings/McCallum], the party against whom summary judgment was entered.” Espinoza v. Schulenburg, 212 Ariz. 215, 216-17, 6, 129 P.3d 937, 938-39 (2006) (citing Duncan v. Scottsdale Med.

–  –  –

(2003)). Summary judgment is appropriate “if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable

–  –  –

verifiably antiquated and has been “concealed [for] so long as 4 At least one court has recognized a fifth category — “embedded property” — which is property that becomes part of the earth.

Corliss v. Wenner, 34 P.3d 1100, 1104 (Idaho Ct. App. 2001).

Generally, embedded property “belongs to the owner of the soil” unless the true owner claims the property. See Klein v.

Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1514 (11th Cir. 1985) (citations omitted); see also 1 Am. Jur.

2d Abandoned, Lost, and Unclaimed Property § 17 (2012) (footnote and citations omitted) (“‘Property embedded in the earth’ includes anything other than gold or silver which is so buried, and is distinguished, in this respect, from ‘treasure trove.’”).

–  –  –

Jur. 2d Abandoned, Lost, and Unclaimed Property § 16 (2012).

11 A finder’s rights depend on how a court classifies the found property. Terry, 37 S.W.3d at 206 (citation omitted);

Ritz, 467 N.W.2d at 268-69; Hill v. Schrunk, 292 P.2d 141, 142

–  –  –

consider all of the particular facts and circumstances of the case. Terry, 37 S.W.3d at 206 (citing Schley v. Couch, 284 S.W.2d 333, 336 (Tex. 1955)); Corliss, 34 P.3d at 1103 (citing 1

–  –  –





(1994)) (distinctions between categories of found property are determined by “an analysis of the facts and circumstances in an effort to divine the intent of the true owner at the time he or

–  –  –

mislaid property, however, must turn the property over to the premises owner, “who has the duty to safeguard the property for the true owner.” Id. (citing Terry, 37 S.W.3d at 206); see also Benjamin, 534 N.W.2d at 406 (citing Ritz, 467 N.W.2d at 269) (“The right of possession of mislaid property belongs to the

–  –  –

against all persons other than the true owner.”).

12 Significantly, among the various categories of found property, “only lost property necessarily involves an element of involuntariness.” Corliss, 34 P.3d at 1104 (citation omitted).

The remaining categories entail intentional and voluntary acts by the rightful owner in depositing property in a place where

–  –  –

overlooks or forgets where the property is,” and that one who finds mislaid property does not necessarily attain any rights to it because possession “belongs to the owner of the premises upon which the property is found,” absent a claim by the true owner.

–  –  –

the court determined that packets of money found in a sealed panel of a wing during an inspection of a repossessed airplane were mislaid property because the money was intentionally placed

–  –  –

Co. v. Paulsen, we stated that in order to abandon personal property, one must voluntarily and intentionally give up a known right. 220 Ariz. 401, 408, 16, 207 P.3d 654, 661 (App. 2008) (citation omitted); see also 1 Am. Jur. 2d Abandoned, Lost, and

–  –  –

as mislaid funds. For example, in Hill v. Schrunk, the Oregon Supreme Court held that cash, which was wrapped in oiled paper, placed in waterproof containers, and found lodged in the bottom of a natural water pool on the decedent’s property, belonged to him at his death, 5 and was mislaid rather than abandoned, lost,

–  –  –

Arkansas Supreme Court affirmed the trial court’s finding that a dusty cardboard box containing about $38,000 and found in the ceiling of a motel room during renovation was mislaid property because “‘the money... was intentionally placed where it was found for its security, in order to shield it from unwelcome

–  –  –

funds were abandoned because Grande consciously ignored the fact that neither she nor her sister had found all of the money that their father had withdrawn from his bank account, and did not do more to find it. We disagree.

5 Likewise, the money found in Spann’s home belonged to him when he passed away and, thus, was part of his estate even though it remained undiscovered for nearly seven years.

–  –  –

from the bank was not presented to the trial court as part of the summary judgment motion. Second, the fact that the trial court correctly determined that the funds were mislaid precludes

–  –  –

at 207-09 (citations omitted) (A finder of lost or abandoned property acquires ownership rights inferior only to those of the true owner; in contrast, “‘[t]he finder of mislaid property must turn it over to the owner or occupier of the premises where it is found..., [who then has a] duty to keep mislaid property for the [true] owner, and... must use the care required of a gratuitous bailee for its safekeeping until the true owner calls for it.’”).

18 Moreover, abandonment is generally not presumed, but must be proven. United States v. Cowan, 396 F.2d 83, 87 (2d Cir. 1968) (citation omitted); Michael v. First Chicago Corp., 487 N.E.2d 403, 409 (Ill. Ct. App. 1985) (citations omitted).

Here, the facts are undisputed that the estate did not know that the money was mislaid, and did not intend to abandon the funds.

In fact, the evidence is to the contrary; once Grande learned of

–  –  –

irrelevant in characterizing cash buried on the property because there was no evidence that decedent abandoned the cash).

19 Jennings/McCallum cite Michael v. First Chicago Corp.

–  –  –

Id. at 408 (citation omitted). Despite the argument that Grande had constructive knowledge that money and valuables had been hidden, and therefore abandoned the money when the house was sold, Michael demonstrates that the fact that neither party knew of the existence of additional ammo cans filled with cash and

–  –  –

409.

21 Further, City of Everett v. Sumstad’s Estate, 631 P.2d 366 (Wash. 1981), does not support the argument that a seller may not use “conscious ignorance” as a shield “to protect her

–  –  –

result, and unlike the contract in Sumstad’s Estate, there was no mutual assent to sell the house with concealed valuables.

23 Based on the evidence before the trial court, there were no facts from which we could begin to infer that the estate intended to relinquish any valuable items that may have been

–  –  –

(rejecting the assertion that money found in airplane panel was abandoned because “[b]oth logic and common sense suggest that it is unlikely someone would voluntarily part with over $18,000

–  –  –

evidence is to the contrary. Accordingly, summary judgment was appropriately granted. 6 6 Jennings/McCallum also argue that their rights to the money as the owners of the house are superior to any rights Bueghly may have. We need not address the issue because we find that the estate is the true owner of the money found in the ammo cans.

–  –  –

CONCURRING:

/s/ ________________________________

ANN A. SCOTT TIMMER, Judge /s/ ________________________________

ANDREW W. GOULD, Judge

15



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