Elf Atochem North America, Inc. v. Celco, Inc.

927 P.2d 355, 187 Ariz. 89, 213 Ariz. Adv. Rep. 17, 29 U.C.C. Rep. Serv. 2d (West) 376, 1996 Ariz. App. LEXIS 56
CourtCourt of Appeals of Arizona
DecidedMarch 26, 1996
DocketNo. 1 CA-CV 94-0037
StatusPublished
Cited by4 cases

This text of 927 P.2d 355 (Elf Atochem North America, Inc. v. Celco, Inc.) 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
Elf Atochem North America, Inc. v. Celco, Inc., 927 P.2d 355, 187 Ariz. 89, 213 Ariz. Adv. Rep. 17, 29 U.C.C. Rep. Serv. 2d (West) 376, 1996 Ariz. App. LEXIS 56 (Ark. Ct. App. 1996).

Opinion

OPINION

EHRLICH, Judge.

Defendants-Appellants/Cross Appellees (“Celco”) appeal from the trial court’s partial summary judgment on the claims of Plaintiff-Appellee/Cross Appellant (“Elf Atochem”) of liability for replevin and conversion of certain citrus-scanning, -sorting and -packing equipment which Elf Atochem both leased and conditionally sold to Ameico, a now-defunct Arizona corporation. Elf Atochem cross-appeals the court’s determination that it suffered “zero” dollars in damages. We affirm the partial summary judgment regarding Celco’s liability for replevin and conversion. However, we remand for further proceedings on the issue of damages.

FACTS AND PROCEDURAL HISTORY

This case centers around a citrus-packing facility (“packinghouse”) in Yuma which was built by Charles Lakin and Sun Country Citrus (“SCCI”) sometime during 1972 and 1973. In 1985, the packinghouse was leased to Sunco Partners. The lease gave Sunco the right to replace existing packing, sizing and grading equipment with “state-of-the-art” equipment, and an option to purchase the packinghouse and all of the equipment outright.

On December 8, 1986, a number of transactions occurred which are critical to resolving this appeal. PKD, Inc. (“PKD”) acquired Sunco’s assets, including the lease and all rights under the lease, on the Lakin/SCCI facility. PKD concurrently exercised the purchase option under the lease, in consideration for which PKD provided a $2.5 million promissory note secured by a deed of trust on the packinghouse. The deed of trust provided that, in the event of default by PKD, Lakin/SCCI had the right to seek a trustee’s sale of the real property and “all buildings, improvements and fixtures located thereon or hereinafter erected thereon.”

In addition, the parties signed a “Bill of Sale” granting Lakin/SCCI “all of Sellers [sic] rights, title and interest in and to all personal property, including without limitation, packing equipment, boilers, compressors, fixtures, packinghouse related supplies ... owned by Seller and located at the packinghouse facility.” The “Bill of Sale” was secured by a Uniform Commercial Code (“UCC”) Form 1 Financing Statement [91]*91(“UCCl”), executed by PKD as “debtor” and listing Lakin/SCCI as the “secured party” in “all personal property” at the packinghouse. Separately, PKD and Lakin/SCCI also signed an agreement whereby the latter was granted a “first position security interest in the personal property involved in the packinghouse to secure all obligations of PKD to Latón except as to any valid liens coincident to installment purchases.”

The final transaction of importance was the execution by Latón and Charles E. Latón, III, president and secretary respectively of SCCI, of an amendment to SCCI’s articles of incorporation changing the company’s name to Celco. It is undisputed, however, that the amendment was not filed with the Arizona Corporation Commission (“Commission”) until March 18, 1987, and that none of the other documents executed on December 8, 1986, were amended or refiled to reflect the change.

Just over two months later, on February 20, 1987, PKD also changed its name to Amcico. While Amcieo filed this change of name with the Commission on February 28, 1987, it did not record the change with the Yuma County Recorder until April 7, 1988.

During the spring and early summer of 1987, Amcieo negotiated for the sale and lease of citrus-sorting equipment from the Pennwalt Corporation, now Elf Atochem.1 The equipment sales were completed on July 7 and 13,1987, and were memorialized in two conditional sales contracts numbered 2969 and 2970.

On the reverse of each of the conditional-sales contracts were identical printed terms and conditions containing the following relevant provisions:

1(a) Title to equipment shall remain in Seller until the entire purchase price is paid in full. Liability for any damage to equipment is assumed by Purchaser. Purchaser agrees upon the Seller’s request to execute a financing statement or such other instrument as may be necessary or suitable to protect Seller’s interest in the equipment. Purchaser agrees to keep the equipment free of all liens and encumbrances.
1(b) If any payment is not received when due, or if Purchaser shall default in the performance of any other obligation required hereunder, all unpaid installments shall become immediately due and payable and Seller shall have the rights and remedies of a secured party under the Uniform Commercial Code or other applicable law including, without limitation thereto, the right to sell, lease or otherwise dispose of any or all of the equipment and the right to take possession of the same and for that purpose the Seller may enter upon the premises on which the equipment or any part thereof may be situated, and remove the same therefrom. The Seller may require the Purchaser to assemble the equipment and make it available to the Seller at a place to be designated by it which is reasonably convenient to both parties____

In accordance with paragraph 1(a), Amcico, as purchaser/debtor, executed a UCCl which Elf Atochem filed with the Arizona Secretary of State on July 15, 1987. The UCCl described the secured collateral as “Equipment as described in Sales Orders #2969 and # 2970.” Copies of the sales contracts were not attached to the UCCl. Shortly thereafter, on July 25, 1987, Elf Atochem began delivery and installation of the equipment at the packinghouse.

In December 1987, Amcico defaulted on its payments under the conditional-sales contracts, as well as on its payments to Celco (then still Lakin/SCCI). On May 16, 1988, Elf Atochem informed Amcico that it would seek to repossess the equipment.

One week later, Celco filed a complaint against Amcico seeking a court-appointed receiver to take control of and manage the packinghouse pending the trustee’s sale under the provisions of the deed of trust. The suit also requested that Celco be given a “first and valid lien” on personal property possessed by Amcieo, including the equipment leased and sold by Elf Atochem. An agreement regarding the appointment of the receiver eventually was reached between [92]*92Celco and Amcico. The stipulation was accepted by the superior court and reduced to an order on June 13,1988.

Elf Atochem learned of the receiver’s appointment on July 13, 1988, and promptly demanded, by letter of the same date sent to Celco’s former counsel, the return of its equipment. When the equipment was not returned, Elf Atochem filed a complaint seeking compensatory and punitive damages for the replevin and conversion of its equipment, and further asking the superior court to enjoin the trustee’s sale. Concurrently, Elf Atochem filed an “Application for Provisional Remedy with Notice of Replevin.”

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927 P.2d 355, 187 Ariz. 89, 213 Ariz. Adv. Rep. 17, 29 U.C.C. Rep. Serv. 2d (West) 376, 1996 Ariz. App. LEXIS 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elf-atochem-north-america-inc-v-celco-inc-arizctapp-1996.