Eldridge v. Burns

• Decision Date: 03 January 1978
• Citation: 142 Cal.Rptr. 845,76 Cal.App.3d 396
• Court: California Court of Appeals Court of Appeals
• Parties: Donald F. ELDRIDGE, aka D. F. Eldridge and Marian T. Eldridge, Plaintiffs, Cross-Defendants and Appellants, v. Alyce Lee BURNS, Emmett Burns, Transamerica Title Insurance Co., Defendants and Cross-Complainants and Respondents. Civ. 38646.

Page 845

142 Cal.Rptr. 845

76 Cal.App.3d 396

Donald F. ELDRIDGE, aka D. F. Eldridge and Marian T. Eldridge, Plaintiffs, Cross-Defendants and Appellants, v. Alyce Lee BURNS, Emmett Burns, Transamerica Title Insurance Co., Defendants and Cross-Complainants and Respondents.

Civ. 38646.

Court of Appeal, First District, Division 1, California.

Jan. 3, 1978.

Rehearing Denied Feb.1, 1978.

Cliff & Nowinski Inc., Palo Alto, for plaintiffs, cross-defendants and appellants.

Crift, Crist, Griffiths, Bryant, Schulz & Biorn, Palo Alto, for defendants and cross-complainants and respondents.

SIMS, Associate Justice.

Plaintiff, Donald F. Eldridge, the purchaser of some 750 acres of land, and Marian T. Eldridge, his wife, have appealed from an adverse judgment in an action in which they sought a degree compelling the defendants, Alyce Lee Burns (the seller of the property and payee of a note secured by a deed of trust, for the balance of the purchase price), Emmett Burns (her husband who filed a disclaimer in the case), the trustee under the deed of trust, and a bank holding a collateral assignment of the purchase money note, to convey to the purchaser a portion of the land under provisions of the deed of the trust which allegedly gave the purchaser the right to a release and partial reconveyance for payments on the purchase price he had made. The plaintiffs also sought to enjoin a threatened foreclosure against the whole of the property that had been subjected to the lien of the deed of trust.

The question of the appealability of the judgment denying the plaintiffs relief has been raised by the parties and determined adversely to the defendants. On the merits the plaintiffs contend that the trial court erred in failing to award them specific performance of a release of property selected and described in literal compliance with the release clause contained in the deed of trust given for the unpaid balance of the purchase price of the property; that it erred in determining that the buyer was not entitled to demand a release of the property because he was in default in the payment of taxes and assessments, and subsequently after demand defaulted in the payment of principal and interest; that it erred in concluding that the release as demanded was unfair; and that it erred in refusing to grant the buyer alternative relief. The seller defends the action of the lower court and insists on her right to the property free and clear of any obligation under the release clause.

On review it is determined that the right to release of the property was not forfeited by the subsequent default of the buyer; that the clause on its face was sufficiently certain to give rise to an obligation to release property; that, because of supervening equitable doctrines protecting the rights of the seller-lender, the demand of the buyer under the clause could not be specifically enforced; and that the trial court erred in not recognizing that the buyer was entitled to some equitable relief to prevent a forfeiture and undue enrichment of the seller, and in failing to enjoin a sale of the whole property without so providing. The judgment must be reversed.

I

Preliminarily it is necessary to determine whether an appeal may be entertained from the judgment in this case, which is entitled "Interlocutory Judgment." ¹ By their complaint the plaintiffs sought (1) to quiet title to property that had been selected under the terms of a deed of trust for partial reconveyance, (2) a declaration that such property had been redeemed free and clear of all liens and encumbrances, (3) a decree compelling such partial reconveyance, (4) forfeiture of the $300 statutory penalty under section 2941 of the Civil Code and consequential damages because of the beneficiary's and trustee's failure to so reconvey, (5) and (6) interlocutory and final decrees prohibiting a sale of the property so claimed under the deed of trust, (7) restitution of sums advanced for the protection of the defendants' security interest in the property, (8) reasonable attorney's fees, (9) costs of suit and (10) such other relief as might be proper. The judgment expressly denied plaintiffs all and any relief. ²

By their amended answer and an amendment thereto the defendant Burns and the trustee under the deed of trust alleged that the release clause was invalid, and prayed for attorney's fees and costs. A separate cross-complaint was filed by those defendants for foreclosure, for a deficiency judgment and for waste. At the trial following the taking of evidence, but before submission of the case, the defendants dismissed their cross-complaint with prejudice. The court so found and adjudged, and also ruled that no attorney's fees were payable to defendants by virtue of that pleading.

The court having found that the plaintiffs were not entitled to enjoin the exercise of the power of sale under the deed of trust further found: "19. The court finds that there may be other issues relating to this matter which may arise prior to the foreclosure sale, including attorneys fees, questions regarding the assessments and other matters, and, therefore, the court finds that it would be equitable to retain jurisdiction in the event an issue or dispute arises between the parties and to further determine attorneys fees at the expiration of the foreclosure sale. [p] 20. The court finds that the defendants have incurred substantial fees in connection with this action and reserves the right to award defendant said fees at a more meaningful time after foreclosure has taken place." and "[p] 22. The court finds that defendant is entitled to reasonable attorney fees and costs in connection with trial of this matter and in connection with the foreclosure of the subject property, in an amount to be determined upon appropriate motion by the defendant before the above entitled court." It concluded, "13. That the court shall retain jurisdiction in the form of an interlocutory judgment for the purposes of retaining jurisdiction to resolve disputes between the plaintiff and defendant up until the time of the foreclosure sale, and for the further purpose of determining attorney fees incurred by defendant together with any issues involving assessments and other matters which may arise between the parties."

"Unless expressly authorized by law an appeal does not lie from an interlocutory judgment. (Citation.) The reason is the 'one final judgment' rule, ' "a fundamental principle of appellate practice in the United States. The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await final disposition of the case. " ' (Efron v. Kalmanovitz, 185 Cal.App.2d 149, 154, 8 Cal.Rptr. 107, other citations omitted.)'' Degnan v. Morrow (1969) 2 Cal.App.3d 358, 362, 82 Cal.Rptr. 557, 558. See also 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 52, p. 4066.) The plaintiffs contend that since the judgment, although labeled "Interlocutory Judgment," disposed of all the issues of the case, except for proceedings to be held on motion to determine the amount of attorney's fees already awarded, the judgment was for all practical purposes final. They also contend that since the judgment was in effect entered in an action in which they sought to redeem real property from a lien thereon, it was appealable under the provisions of subdivision (h) of section 904.1 of the Code of Civil Procedure, even though interlocutory. ³

The governing principles are set forth in Lyon v. Goss (1942) 19 Cal.2d 659, 123 P.2d 11, as follows: "A decree in equity which is denominated 'interlocutory' and directs a further hearing for certain purposes, may make so complete and final an adjudication of all issues of fact and law as to constitute a 'final judgment' within the meaning of that term as used in the statutes concerning appeals. The problem of determining whether a particular decree is essentially interlocutory and nonappealable, or whether it is final and appealable is often a difficult one. Two conflicting lines of authority bearing upon the subject are reviewed in Security-First Nat. Bank v. Superior Court, 132 Cal.App. 683, 23 P.2d 1055 . . . (Citations.) It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory." (19 Cal.2d at pp. 669-670, 123 P.2d at p. 17. See also Zappettini v. Buckles (1914) 167 Cal. 27, 32-34, 138 P. 696. Palo Alto-Menlo Park Yellow Cab Co., Inc. v. Santa Clara County Transit Dist. (1976) 65 Cal.App.3d 121, 129, 135 Cal.Rptr. 192; Goodman v. Community S. & L. Assn. (1966) 246 Cal.App.2d 13, 20, 54 Cal.Rptr. 456; Brown v. Memorial Nat. Home Foundation (1959) 158 Cal.App.2d 448, 452-455, 322 P.2d 600 (cert. den. (1959) 358 U.S. 943, 79 S.Ct. 353, 3 L.Ed.2d 352); Caminetti v. Imperial etc. Life Ins. Co. (1942) 54 Cal.App.2d 514, 516-517, 129 P.2d 432; 6 Witkin, op. cit., Appeal, § 53, pp. 4067-4068; and 4 Witkin, op. cit., Judgment, §§ 7, 8 and 10, pp. 3186-3188.)

In this case, unlike Lyon v. Goss, but as in the other cases cited, there was nothing further in the nature of judicial action on the part of the court essential to a final determination of the asserted rights of the respective parties. Those rights were fully established by the judgment. The mere fact that other proceedings were deemed necessary by the court to carry the judgment into effect did not render the judgment interlocutory rather than final. Under the trial court's...