(dissenting).
I must dissent from the majority decision. It is my opinion that the appeal is not moot and that a genuine issue as to a material fact exists which precludes the summary judgment rendered by the trial court. I would reverse the summary judgment and remand the case for a trial on the merits.
An important aspect of this case is that it was disposed of by summary judgment and the appellant, Del Rio Land, Inc., on appeal is entitled to have all inferences drawn from the evidence in its favor, even as regards the question of mootness. There is no law that favors mooting a case on appeal; quite to the contrary, the law favors the disposition of appeals on their merits where possible. Burnkrant v. Saggau, 12 Ariz.App. 310, 312, 470 P.2d 115 (1970).
In Arizona a substantial body of law has developed regarding the doctrine of mootness resulting from the acts of the appellant and it appears to me that the test to be drawn from this body of case law would be that mootness results where the appellant has so substantially changed his position regarding his case that the appeals court is forced to say, “he has chosen his path, let him follow it.” This is the rationale involved in accord and satisfaction or compromise and settlement resulting in mootness discussed in Moreno v. Russell, 47 Ariz. 38, 53 P.2d 411 (1936); Cano v. Arizona Frozen Products Co., 38 Ariz. 404, 300 P. 953 (1931); Little v. Brown, 40 Ariz. 206, 11 P.2d 610 (1932); Belknap v. Hunt, 20 Ariz. 148, 177 P. 932 (1919) ; Corbin on Contracts (1 Vol. ed. 1970) § 1278. It is also the rationale involved in the “voluntary” or “involuntary” test for mootness as discussed in Webb v. Crane Co., 52 Ariz. 299, 80 P.2d 698 (1938); 4 Am.Jur.2d, Appeal and Error, §§ 260-266; Annot. 39 A.L.R.2d 153 (1955).
The foregoing is important in my view since the record shows that the appellant was in financial distress, that it was unable to post a supersedeas bond to stay the execution of the judgment pending appeal, and that it attempted to comply with the trial court’s broad judgment, which it was under legal compulsion to do, pending the determination of this matter on appeal. In addition, my review of the very broad language of the summary judgment, which requires a contract, escrow, agreement, deeds, terms of sale, payment .schedule, including payment of the first mortgage which was foreclosed, etc., without setting forth the multiplicity of terms required for such transactions, reveals substantial compliance by the appellant with the judgment in the nature of the involuntary payment of a judgment. I find it impossible to place appellant’s compliance under either a compromise and settlement or an accord and satisfaction relationship. The majority decision has the same problem and merely avoids it.
With these preliminary remarks out of the way, in my opinion the decision should read as follows:
This appeal by Del Rio is from a summary judgment granted in Haumont’s favor ordering specific performance of the sale of Del Rio’s land at an auction in which Haumont was the highest bidder. Del Rio, in essence, argues that there are “genuine issues as to any material fact” and that therefore the summary judgment must be reversed and remanded for a trial on the merits. Haumont argues that the issue is moot because of a compromise and settlement in that after the filing of the summary judgment Del Rio entered into an agreement of sale for the land with Haumont and the agreement contains covenants in addition to those required by the summary judgment. In addition, Haumont argues that there are no genuine issues as to any material issue of fact.
*353IS THE APPEAL MOOT?1
Haumont’s contention of mootness is as follows:
“After the Superior Court entered its judgment, Del Rio elected not to post a supersedeas bond and entered into a signed, written agreement with Haumont whereby Del Rio sold the subject real property to Haumont. The agreement contains terms not required by the judgment of the Court (e. g., right of the prevailing party to collect attorneys’ fees in any suit to enforce the agreement). The agreement contains no provision making the enforcement of the agreement in any way conditional on the outcome of this appeal. [Had Del Rio wished to make the Agreement in compliance with the Judgment or conditional upon the appeal, it easily could have done so. 4 Am.Jur. 2d, Appeal and Error, § 262:
‘A defeated party’s compliance with a judgment for other than the payment of money destroys his right to appeal where such compliance makes it impossible for the appellate court to grant him effective relief on the merits . . .’]
“Thus regardless of the outcome of the appeal Haumont is in possession of the subject real property under a written, acknowledged and recorded agreement which is enforceable between the parties. This appeal is therefore moot.”
The summary judgment ordered Del Rio to perform the following acts in relation to its real property:
“3. That defendant Del Rio Land, Inc., James B. Carr and Christopher W. Carr, President and Secretary of said corporation shall forthwith execute, acknowledge and deliver all deeds, documents, and other instruments required to complete the sale of the above described land in order to convey good and sufficient title of said land free from all encumbrances to plaintiff, to Stewart Title & Trust of Phoenix, who shall handle the escrow and collection of said sale and that defendants shall, upon close of escrow, let plaintiff into possession of the above described property.”
The judgment also provided that Haumont’s purchase was to be by contract at a gross price of $2600 per acre, 25% down payment with the balance payable in 100 equal monthly installments with 7% interest included. It also provided that the monthly installments would begin 30 days following the close of escrow. In addition the judgment acknowledges that the real property is encumbered by a mortgage.
The record shows that the auction of Del Rio’s land and personal property was brought on by its financial difficulties, and that following the filing of the summary judgment appealed from, Del Rio failed to file a supersedeas bond, as authorized by Rule 73 (k), Rules of Civil Procedure, 16 A.R.S., in order to obtain a stay of execution of the summary judgment, which contained Rule 54(b), Rules of Civil Procedure, 16 A.R.S., language of finality. Del Rio was therefore required by law to comply with the judgment pending its appeal to this Court.
In Burnkrant v. Saggau, 12 Ariz.App. 310, 470 P.2d 115 (1970), a motion was made to dismiss the appeal on the basis of mootness since the school authorities, in compliance with the trial court’s judgment and pending appeal, had readmitted the student who was suspended for smoking. We said: *354tory, if upheld. Nor was it incumbent upon the school authorities to litigate in the trial court the possible ultimate effects of an appeal, if (as of that time) one were taken. Mootness generally derives from the ‘abstract’ or ‘academic’ nature of the issues presented on appeal. See 5 Am.Jur.2d Appeal and Error § 762 (1962). Appellee has not cited any authority indicating that hardship to the appellee renders a controversy moot.
*353“ . . . The school authorities can hardly be faulted for their prompt compliance with the writ, which was their only lawful course of conduct and which accorded to Kent Saggau the fruits of his vic-
*354“On the other hand, we are aware of authorities which hold, in effect, that compliance with a judgment for specific relief can defeat an appeal where the compliance is such that it would be impossible in the event of reversal to restore the status quo. See Annot. 39 A. L.R.2d 153, 183-85 (1955). If such a principle could redound to the benefit of appellee and her student son, they have not advised us of the workings of the school system and precisely how it could or should work to their benefit in this case. Where a right to appeal is given, as it is here, see A.R.S. § 12-2101, sub-sec. B1, the law will seek to uphold it.
1. And see State Board of Barber Examiners v. Walker, 67 Ariz. 156, 166, 192 P.2d 723, 730 (1948).
Cf. Davis v. Campbell, 24 Ariz. 77, 80, 206 P. 1078, 1079 (1922). Even if the school authorities’ action in complying with the writ were inherently irreversible, we might still determine the questions raised in view of their public importance. See Wise v. First National Bank, 49 Ariz. 146, 65 P.2d 1154 (1937). . . .” (Emphasis original) (12 Ariz.App. at 312, 470 P.2d at 117).
I reemphasize that where a right to appeal is given the law will seek to uphold it.
It is true as Haumont contends that there are certain terms contained in the agreement that were not specifically provided for in the summary judgment. The most surprising aspect in this regard is the failure of either the escrow or agreement of sale to contain any reference to their being contingent on the outcome of Del Rio’s appeal. However, while such a statement would be dispositive of the issue of mootness (Annot. 39 A.L.R.2d 153 (1955)), it is not absolutely necessary, for the question is whether a compromise and settlement or accord and satisfaction resulted from Del Rio’s actions and the answer to this question is based upon the written intention of the parties expressed in the escrow and agreement as related to the requirements of the summary judgment. The construction of these writings is a question of law and not one of fact.
My review of the escrow instructions and agreement reveal complete compliance on the part of Del Rio with the demands made on it by the summary judgment. The variations between the agreement and the broad ambit of paragraph 3 of the judgment, supra. Further, there is no intention expressed anywhere in’the documents to indicate an intention on the part of Del Rio to give up its appeal. In our opinion the escrow and agreement of sale constitute neither a compromise and settlement nor an accord and satisfaction. For examples of each see Moreno v. Russell, supra; Cano v. Arizona Frozen Products Co., supra; Corbin on Contracts (1 Vol. ed. 1970) § 1278, The Relation of Compromise to Accord and Satisfaction. See also Law Note in 13 Ariz.L.Rev. 464 (No. 2-1971) The Mootness Doctrine in a State Court, to which should be added the compromise and settlement side of the question contained in: Webb v. Crane Co., supra; Little v. Brown, supra; Belknap v. Hunt, supra; Freeman v. Wintroath Pumps, 13 Ariz.App. 182, 475 P.2d 274 (1970), and 5 Am.Jur.2d § 761 et seq. (1962).
I would hold that the appeal is not moot. In addition I see no problem in returning matters to their status quo in the event that Del Rio is eventually successful in its defense.
SUMMARY JUDGMENT
Turning now to the summary judgment question of whether there is or is not a genuine issue as to any material fact, I am *355of the opinion that there is and that the summary judgment must be reversed.
The record shows that the auction agreements between Del Rio and the auctioneer involving the land provided that the land would be sold “subject only to the existing mortgage”; that the brochure advertising the sale, which Haumont received several days before the auction, stated that the “property will be sold subject only to present small mortgage”; that Jesse J. Carr, one of the owners of Del Rio, testified in his deposition that the auctioneer conducted the auction of the land in the following manner:
“A Then he auctioned off the equipment and then they had a small break and Mr. Graham used his bullhorn, and made a resume of the property. He also speeled (sic) out the property across the river, the price it was selling for, what he thought was a fair value for the property. He also stated that ‘This is subject to the mortgage like it is shown in the brochure,’ and then he asked for the bids, then he followed through.”
and later he testified:
“Q Did you hear Mr. Graham advise the people before the auction that the bid would be a lump sum bid per acre, for simplicity of auctioning the ground? “A No.
“Q And your testimony, the only thing he stated to them, was that the ground would be subject to the mortgage?
“A And he give (sic) the amount of acres.
“Q Did he tell what the amount of the unpaid balance of the mortgage was?
“A He said roughly $55,000.”
The plaintiff, Mr. Haumont, testified by deposition that the auctioneer had said the following:
“A Well, he said they were going to sell approximately 70 acres of land, gave a description of the boundaries, as to regard of the mortgage, he definitely stated that the bid price per acre would be the full purchase price of the property.
“Q He said nothing about, that you heard, whether or not the property was being sold subject to the existing mortgage?
“A No, sir.”
Later he testified:
“Q BY MR. ROBBINS : Did you hear Mr. Graham say anything regarding whether or not the property was being sold subject to the mortgage? Were these words mentioned, do you recall these words being mentioned?
“A Yes.
“Q All right.
“MR. FLICKINGER: Just to clarify the record, you mean the words ‘subject to.’ Were those words used?
“A I don’t know.
“Q BY MR. ROBBINS: So your answer to that last question would be you don’t know, right?
“A Right.
“Q Instead of yes?
“A Yes.”
Haumont testified that he thought that his bid of $2600 per acre was the full purchase price of the real property. The auctioneer, who was from Texas, testified that “subject to” meant that Del Rio would be obligated to pay the mortgage off out of the proceeds of the sale. The owners of Del Rio testified that they thought that “subject to” meant that Haumont would assume the mortgage and that consequently the sale price was $2600 per acre plus an assumption of their mortgage debt of $55,-000 plus dollars. Added to this we have the conflict in testimony by Jesse Carr and Haumont, set out above, on whether or not the sale was announced as subject to the mortgage. For some reason not clear from the record, the trial court adopted the legal conclusions of the auctioneer although Bennett v. United States Land, Title and Legacy Co., 16 Ariz. 138, 141 P. 717 (1914), and 9 Thompson on Real Property (1958 Replacement), § 4791 would seem to dictate a different result.
*356On review of the summary judgment we must draw all inferences that arise from the evidence in favor of the appellant Del Rio in order to determine whether granting a summary judgment was proper or not. Ong Hing v. Arizona Harness Raceway, Inc., 10 Ariz.App. 380, 459 P.2d 107 (1969). As I have demonstrated there is a clear conflict in the evidence as to what was said and what was meant hy what was said at the auction. Under these circumstances we can do nothing else but reverse the summary judgment and return the matter for a trial on the issues as there are genuine issues as to a material fact presented.
. This question was raised initially in this Court by a motion to dismiss. We granted the motion when Del Rio failed to respond in time. However, it appeared and moved to set the order aside showing good cause for its failure to respond. We reinstated the appeal. The subject is raised again in Haumont’s brief like a cross-question on appeal.