Century Investment Corporation v. United States

• Decision Date: 14 March 1960
• Docket Number: No. 16360.,16360.
• Citation: 277 F.2d 247
• Parties: CENTURY INVESTMENT CORPORATION, Appellant, v. UNITED STATES of America, and Don S. Griffith, Special Master, Appellees. Virgil J. PAGUE, Appellant, v. Don S. GRIFFITH, Appellee. UNITED STATES of America, Appellant, v. Donald F. OWENS et al., Appellees. Edward R. ESTER et al., Appellants, v. Don S. GRIFFITH, Special Master, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

277 F.2d 247 (1960)

CENTURY INVESTMENT CORPORATION, Appellant, v. UNITED STATES of America, and Don S. Griffith, Special Master, Appellees.

Virgil J. PAGUE, Appellant, v. Don S. GRIFFITH, Appellee.

UNITED STATES of America, Appellant, v. Donald F. OWENS et al., Appellees.

Edward R. ESTER et al., Appellants, v. Don S. GRIFFITH, Special Master, Appellee.

No. 16360.

United States Court of Appeals Ninth Circuit.

March 14, 1960.

COPYRIGHT MATERIAL OMITTED

Lycette, Diamond & Sylvester, Lyle L. Iversen, Seattle, Wash., for appellants Century Investment Corp., and Virgil J. Pague.

Arthur G. Barnett, McMicken, Rupp & Schweppe, Seattle, Wash., for Edward R. Ester, Arthur G. Barnett and Donald F. Owens, appellants-appellees.

Perry W. Morton, Asst. Atty. Gen., Roger P. Marquis, Harold S. Harrison, Attys., Dept. of Justice, Washington, D. C., Charles P. Moriarty, U. S. Atty., Joseph C. McKinnon, Asst. U. S. Atty., Seattle, Wash, for appellant-appellee, United States.

Before HAMLEY, JERTBERG and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

These cross appeals were taken from a judgment entered after a remand ordered by this court following a previous appeal. See Century Investment Corporation v. United States, 9 Cir., 250 F.2d 139, certiorari denied sub nom. Ester v. United States, 356 U.S. 950, 78 S.Ct. 915, 2 L.Ed. 2d 843. The basic facts and underlying legal issues are set forth in our prior opinion and will not be repeated here.

Upon the remand the trial court on July 11, 1958, granted the motions of the personal defendants for summary judgment dismissing the action as to them.¹ At the same time the trial court denied a similar motion made by Century. Questions as to liability for the payment of the fee of the special master were expressly reserved as to all defendants. On August 22, 1958, the trial court denied the government's motion to reconsider the motions of the personal defendants for summary judgment.

On September 15, 1958, a hearing was had on the question of the master's fees and expenses. A trial was also had on that day limited to the question of the amount of damages to be awarded to the government against Century by reason of the latter's breach of contract as adjudicated on the prior appeal. As a result of this hearing and this trial, an order and a judgment were entered on September 29, 1958.

In the order, which was also confirmed in the judgment, the special master was awarded a fee of $2,500 and allowed expenses in the sum of eighty-three dollars. It was provided that the government would pay one fourth of these amounts. The defendants were jointly and severally made liable for the remaining three fourths of these sums aggregating $1,937.25. In the judgment entered on the same date the government was awarded damages against Century in the sum of $15,000.

Appeal by the United States.

On its appeal the government first specifies as error the entry of a summary judgment of dismissal as to the personal defendants. In a second specification the government challenges the awarding of only "token" damages "and those as against the one defendant Century which is apparently judgment proof by reason of its insolvency."

In so far as the government in its second specification of error complains of the judgment awarded against Century, the matter will be reserved for discussion in considering Century's appeal.

In so far as the government in its second specification complains of the failure to award any judgment against the personal defendants, little needs to be said. The failure to enter any damage award against them is not error if they were properly dismissed — a question to be considered under the first specification of error. On the other hand, if they were not properly dismissed there must be another trial before an award of damages can be made against them. Having been dismissed prior to the trial of September 15, 1958, they have not yet been heard on the question of damages.

Concerning the first specification of error relating to entry of a summary judgment, all of the personal defendants move to dismiss this portion of the appeal as untimely. They do not deny that the notice of appeal filed November 28, 1958, is timely with regard to the judgment of September 29, 1958. They argue, however, that summary judgment was granted by order entered July 11, 1958, and confirmed on August 22, 1958, and that the notice of appeal is not timely as to those orders or judgments.

A similar motion of the personal defendants to dismiss this part of the government's appeal was denied by this court on March 30, 1959.²

We adhere to that determination. This case involves multiple claims — separate claims by the government against Century and each of the personal defendants. The orders of July 11 and August 22, 1958, did not adjudicate all of these claims since they did not deal with the claim against Century.³ It is provided in Rule 54(b), Federal Rules of Civil Procedure, 28 U.S.C.A., that when multiple claims are presented in an action the court may direct entry of final judgment upon less than all of the claims "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."

The trial court did expressly direct the entry of judgment for the personal defendants when it denied the government's motion to reconsider the motion for summary judgment. It did not, however, make an express determination "that there is no just reason for delay," although invited to do so by the government.⁴ Without such a determination the order granting summary judgment and the order denying the motion to reconsider the motion for summary judgment cannot be regarded as final and appealable. Gilbertson v. City of Fairbanks, 9 Cir., 253 F.2d 231, 17 Alaska 458, and cases there cited.

The motion to dismiss the government's appeal from the summary judgment for the personal defendants is denied.

This brings us to the merits of the appeal from that summary judgment. The government initially sought specific performance of a contract to remove buildings from land in which the government claimed a right of occupancy. It also sought monetary damages on several alternative theories, including trespass and implied contract to pay reasonable rental. Following the first trial a judgment was entered denying specific performance but awarding monetary damages.

On the first appeal we held that the monetary award could not be sustained on the theory which we understood the trial court had adopted. We pointed out, however, that the government's complaint was broad enough to sanction damages on the alternate theories of trespass or implied contract. We were uncertain whether the trial court had intended to reject those theories in granting judgment for the government on a different theory.⁵ We accordingly remanded the cause with these directions:

"Upon remand, the trial court may determine the question of liability on the theory of trespass or implied contract to pay reasonable rental, either by construing the findings in the record or by proceeding to another trial, as may be thought proper. If recovery is warranted on either of these theories, it should not include any rental value of the buildings, but may otherwise include any actual expense incurred or monetary damages sustained by the government."

Following the remand the trial court, exercising the choice given to it by the quoted directions, determined the question of liability of the personal defendants by construing its previous findings. The trial court held in effect that its previous ruling on the question of the government's right to exclusive occupancy was intended to be dispositive of the trespass and implied contract theories.

This court, of course, accepts the trial court's construction of the purport of that court's own previous holding. But in indicating that the trial court could make a determination on the basis of its prior holding we did not preclude the government from contending on a second appeal that the original holding as now construed was erroneous. In so far as the directions on remand are concerned, the government was afforded the same right to appeal from a determination based on the trial court's previous findings as it would have had from a determination made after a new trial.

The personal defendants argue, however, that since the government failed to challenge this original holding on the prior appeal such holding has become the law of the case and may not now be questioned.

There are two reasons why this argument must be rejected. First, since this court itself was in doubt on the prior appeal as to whether such a holding had been made by the trial court, the government could hardly be blamed for not then challenging it. Second, the government was awarded damages against the personal defendants in the first judgment and was the appellee on that appeal. Since it was not aggrieved by the judgment entered, it was not obliged to question the trial court's adverse ruling on the government's alternative theories.

This is the first time the government has had an opportunity to be heard in this court on the merits of the holding under discussion. That holding consists partly of a finding of fact and partly of a conclusion of law. The finding of fact is that the government has not proved that the annual real estate taxes which the government was required to pay under the condemnation decree had been paid. The conclusion of law is that since the government did not make such proof, it did not establish a right to exclusive occupancy of the land and so may not maintain an action to recover damages for trespass upon such land or, on the theory of an implied contract, to recover the rental value of the land.

The government challenges both the finding of fact and the conclusion of law. None of the personal defendants has joined issue on either of these questions. They contend only that either...