Cammon Consultants Corp. v. Day

889 P.2d 24, 181 Ariz. 231, 168 Ariz. Adv. Rep. 60, 1994 Ariz. App. LEXIS 136
CourtCourt of Appeals of Arizona
DecidedJuly 5, 1994
DocketNo. 2 CA-CV 93-0293
StatusPublished
Cited by5 cases

This text of 889 P.2d 24 (Cammon Consultants Corp. v. Day) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cammon Consultants Corp. v. Day, 889 P.2d 24, 181 Ariz. 231, 168 Ariz. Adv. Rep. 60, 1994 Ariz. App. LEXIS 136 (Ark. Ct. App. 1994).

Opinion

OPINION

HATHAWAY, Judge.

This appeal is taken from the trial court’s granting of summary judgment for defendants/appellees in a tax lien foreclosure action. Summary judgment is proper when only one inference can be drawn from the facts and the moving party is entitled to summary judgment as a matter of law. Auto-Owners Ins. Co. v. Moore, 156 Ariz. 184, 750 P.2d 1387 (App.1988). We view the facts in the light most favorable to appellant. Ferree v. City of Yuma, 124 Ariz. 225, 603 P.2d 117 (App.1979).

In November 1988, Lane Justus (Justus) acquired title to 19 parcels of real property located in Pima County. At the time, the parcels were subject to a prior lien held by appellee H. Alan Day (Day) and his predecessors in interest. Also, the real estate taxes were delinquent for 1984 and subsequent years.

In February 1992, the Pima County Treasurer held a sale of tax liens for delinquent property taxes on the parcels pursuant to AR.S. §§ 42-381 through 42-407. Justus purchased the tax liens on behalf of appellant Cammon Consultants Corporation. That March, Cammon filed an action to foreclose the tax liens, naming Justus and appellees as defendants. Appellees answered and moved for summary judgment, arguing that sale of the tax liens was invalid because the delinquent taxes were paid by the owner of the parcels, Justus, when he purchased the tax liens on behalf of his alter ego, Cammon. Cammon opposed the motion and moved for judgment on the pleadings. The trial court denied Cammon’s motion and granted appel-lees’, finding in relevant part that Cammon “is an agent of Defendant Justus,” that ap-pellees “would be harmed if the sale of the tax liens to ... [Cammon] were found to be valid,” and that “[t]he sale of the tax liens in this case to an agent of the owner is contrary to public policy and unfair to the lienhold-ers.”

Cammon appeals the denial of its motion for judgment on the pleadings, the granting of appellees’ motion for summary judgment, and the award of attorney’s fees and costs to appellees pursuant to A.R.S. § 12-341.01(0). We affirm based upon the following undisputed facts.

[233]*233Cammon was formed by Justus and the only tax liens it ever purchased are the ones involved in this case. Cammon’s majority shareholder is a trust formed by Justus. The beneficiaries of the trust are Justus, his wife and his children. The sole directors of Cammon are Justus and his wife. Cammon’s president is William Gottlieb, whose occupation is the development of a pharmaceutical company. Justus asked Gottlieb, a personal friend, to serve as president of Cammon which Gottleib has done since December 1990. Gottlieb was never invited to nor did he attend or call any meetings during the time he was president. In addition to acting as president, Gottlieb also served as all the other officers of Cammon, in apparent violation of A.R.S. § 10-050, which requires that the positions of president and secretary be held by different persons. Gottlieb performed no duties and received no pay for acting as president of Cammon; he was president in name only.

Gottlieb never drafted or even saw the articles of incorporation or by-laws of Cam-mon, nor did he know who was the corporation’s agent. He was not aware that the tax liens had been purchased on Cammon’s behalf and did not know the source of the funds used to make the purchases. He did not engage an attorney to draft the tax foreclosure complaint, file the complaint or represent the corporation. In fact, he was unaware of this action until his deposition was noticed. He testified that he did whatever Justus wanted as long as it was legal.

DISCUSSION

When the observance of the corporate form would promote injustice, it will be disregarded. In Employer’s Liability Assurance Corp. v. Lunt, 82 Ariz. 320, 323, 313 P.2d 393, 395 (1957), the court stated that a corporate fiction should be disregarded upon the concurrence of two circumstances: (1) when the corporation is, in fact, the alter ego of an individual or a few individuals (i.e., when they share an indivisible unity of interest); and, (2) when the observance of the corporate form would sanction a fraud or promote injustice.

Here, Justus and his wife are the sole directors of Cammon. The majority shareholder of Cammon stock is a Justus family trust, the beneficiaries of which are Justus, his wife and their two children. William Gottlieb, Cammon’s president, performed no duties for Cammon, except to the extent he was instructed to do so by Justus. And, the tax liens at issue are the only tax liens Cammon has ever purchased. It is also noteworthy that even though Justus was named in the complaint, he filed no answer nor did he file a brief in this court in support of the trial court’s decision. It is thus clear that Cammon and Justus have a commonality of interests in this case.

Additionally, to recognize Cammon as a corporate entity separate and distinct from Justus would work an injustice in this case. Appellee Day holds, as successor in interest, a lien of approximately $200,000 on the parcels. If foreclosure of the tax liens were permitted, Day’s lien would be extinguished and Justus, through Cammon, would have the parcels free and clear of the $200,000 lien without paying anything to satisfy it.

Moreover, although it was not the basis of the trial court’s ruling, we believe the following legal principle applies:

It is a general principle of law that one who by virtue of an existing legal or contractual relation with another is under an obligation to such other person to pay the taxes on lands, but who omits to pay such taxes, cannot be allowed to strengthen his title to such land by buying in the tax title when the property is sold as a consequence of his omission to pay the taxes on it; his purchase at the sale will merely operate as a payment of the taxes, and the title will be the same as it was before the sale, except that the lien for taxes is discharged. This rule includes those whose duty it is to pay the taxes or who have such an interest in the property that they might redeem the same from tax sale and, save themselves from loss and injury____

72 Am.Jur.2d State And Local Taxation § 941 at 234-35 (1974) (emphasis added, footnotes omitted). See also, Weisberg v. Loughridge, 253 Cal.App.2d 416, 61 Cal.Rptr. 563 (1967); Miller v. First National Bank of [234]*234Englewood, 164 Colo. 449, 485 P.2d 899 (1968); Petition of Candlewick Lake Ass’n, Inc., 131 Ill.App.3d 939, 87 Ill.Dec. 98, 476 N.E.2d 800 (1985); Buchanan v. Hansen, 820 P.2d 908 (Utah 1991); Dillman v. Foster, 656 P.2d 974 (Utah 1982). Here, Justus was the owner of the property and thus had the right to redeem the tax liens pursuant to A.R.S.

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889 P.2d 24, 181 Ariz. 231, 168 Ariz. Adv. Rep. 60, 1994 Ariz. App. LEXIS 136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cammon-consultants-corp-v-day-arizctapp-1994.