McNulty v. Copp

• Decision Date: 03 June 1954
• Citation: 271 P.2d 90,125 Cal.App.2d 697
• Court: California Court of Appeals Court of Appeals
• Parties: McNULTY v. COPP et al. ELDRIDGE v. AHERN et al. (two cases). Civ. 15769-15771.

Page 90

271 P.2d 90

125 Cal.App.2d 697

McNULTY v. COPP et al.

ELDRIDGE v. AHERN et al. (two cases).

Civ. 15769-15771.

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

June 3, 1954.

Rehearing Denied July 2, 1954.

Hearing Denied July 28, 1954.

Frank J. Fontes, San Francisco, Leo R. Friedman, San Francisco, for appellants.

George Herrington, Willard S. Johnston, William H. Orrick, Jr., Orrick, Dahlquist, Herrington & Sutcliffe, San Francisco, for respondents.

McMURRAY, Justice pro tem.

Three separate appeals are involved here. The first is an appeal from an order for payment of a cash appeal bond in McNulty v. Copp, No. 15769, which bond was posted on appeal therein; the decision on the appeal in that matter is reported in 91 Cal.App.2d 484, 205 P.2d 438; it will hereafter be called the original action. The second appeal is in Eldridge v. Ahern, No. 15770, and is from a judgment for the plaintiff in an action for accounting and for damages for the use and possession of the real property involved in the original action; this second appeal will hereafter be called the real property action. The third appeal is in Eldridge v. Ahern, No. 15771, and is from a judgment for plaintiff in an action for the possession and damages for the wrongful detention of certain personal property located in the residence on certain of the real property involved in the original action; this third appeal will hereafter be called the personal property action.

Mrs. Anita McNulty, plaintiff, cross-defendant and appellant in the original action, is the same person as Anita McNully Ahern who is one of the defendants and appellants in the real property action and also in the personal property action; the other defendant and appellant in the last two actions is William Ahern, her husband. Mrs. Olive Copp Eldridge is Mrs. Ahern's sister and, with Herbert Copp, as executor of the estate of Henry W. Copp, deceased, was defendant, cross-complainant and respondent in the original action. Mrs. Eldridge was substituted as plaintiff for Herbert Copp, as executor, in the real property action and the personal property action and is the respondent in all actions.

All of the appeals deal either with certain real property which was the residence of Henry W. Copp, the father of Mrs. Ahern and Mrs. Eldridge, during his lifetime, or with personal property which was in said residence.

The facts here pertinent are that in January, 1945, Henry W. Copp died leaving a will by which he left his residence and an adjacent lot to Mrs. Eldridge. A few hours after his death Mrs. Ahern recorded a deed from her father to herself purporting to be signed and executed in 1933, and covering lots 4 and 5 of block 9 in the St. Francis Wood subdivision in San Francisco. Henry Copp's residence was, in fact, on lot 6 of said block; the garden adjacent to the residence was on lot 5 of the same block. Mrs. Ahern filed the original action against her sister and the executor of her father's estate seeking reformation of the deed to recite the proper lots. The executor and Mrs. Eldridge defended on the ground of fraud, and cross-complained for cancellation of the deed and for quiet title. In this action it was found by the trial court that the deed recorded by Mrs. Ahern had been obtained by a fraudulent representation to her father, who was nearly blind and depended upon Mrs. Ahern to read to him, that the execution thereof was necessary to clear a defect in the title to certain real property, and that Henry Copp had never intended to execute any deed to his residence to Mrs. Ahern. Judgment was given on the cross-complaint ordering cancellation of the deed and quieting title, and was affirmed on appeal in McNulty v. Copp, 91 Cal.App.2d 484, 205 P.2d 438. In the original action, in lieu of an undertaking on appeal, under Code of Civil Procedure section 945, Mrs. McNulty posted $9,100 in cash as provided in Code of Civil Procedure, section 1054a.

While the appeal in the original action was pending, the real property action, No. 15770, and the personal property action, No. 15771, were filed. By amendment to the answers after remittitur appellants pleaded that the original action was res judicata as to the subsequent actions.

Over objection by the appellants the trial court ordered that the motion for order to pay over the cash deposit in the original action be consolidated with the other two actions and, after trial, ordered the payment of the full amount of the deposit to Mrs. Eldridge and gave judgment for respondent and against appellants in the real property action and also in the personal property action for the sum of $22,042.61.

During the consolidated trial of the motion and actions it appeared that there had been a fire in the residence here involved and that certain items of personal property had been damaged. Among these items was a painting worth $3,000, according to testimony, which was so damaged as to render it valueless as a work of art. Mrs. Ahern concealed the true value of this painting from the executor and her relatives and had an artist patch up the picture so that its damaged condition would not be readily apparent to unskilled persons. The executor obtained an order in the probate court approving an insurance settlement of the total fire loss without any particular reference to this picture. The trial court allowed an amendment to conform to proof regarding this picture and found that appellants had concealed the true value of and extent of the damage to this painting from respondent and had by this fraudulent conduct damaged respondent in the amount of $2,900, the value of the painting less salvage value.

In his memorandum opinion in the real property and personal property actions the trial judge stated that Mrs. Ahern had been guilty of 'deliberate oppression, falsehood, fraud and malicious conduct in the prosecution and defense of these cases' and that there should be an award of exemplary damages in the sum of $2,000, and allowed respondent to amend her complaint so to state. These statements were incorporated into the findings of fact, and the court, in addition, found that such oppression, fraud and malicious conduct applied as well to appellants' occupancy, retention and misappropriation of the real and personal property and the proceeds from the insurance of the damaged painting.

The court further found that the rental value of the furnished residence was the sum of $200 per month and (despite testimony that for 17 months the house was not in condition to rent due to the fire damage although occupied by Mrs. Ahern) assessed damages for the full period of appellants' occupancy, including the time after judgment and before appellants' relinquishment of the property after remittitur in the original action, and provided that interest on the damages, compounded annually, be paid to Mrs. Eldridge for the entire period of time in question, both as to the value of use and occupancy and the value of the painting. The court further found that the facts and law determined in the original action were res judicata as to such matters in the subsequent actions and also found that appellants were constructive trustees for respondent of all the property involved.

There are eight questions involved:

1. Was the original action res judicata in the real property action?

2. Was the original action res judicata in the personal property action?

3. Was the probate order res judicata as to the claim for the destroyed picture; was there sufficient evidence to support the award of damages for the picture?

4. Was it error to award the fair rental value of the premises during the period they were damaged by fire?

5. Are the appellants liable for damages occurring without fault; are they entitled to offset expenses in preserving, maintaining and repairing the property?

6. Was it error to allow compound interest on the unliquidated claims?

7. Was it error to award exemplary damages?

8. Was it error to order payment of the cash deposited on appeal in the original action?

1. Was the original action res judicata in the real property action?

The judgment in the original action was rendered on a cross-complaint which prayed for cancellation of certain deeds and for a decree quieting title to the property therein described and granted both of these prayers. In Bernhard v. Bank of America Nat. Trust & Savings Ass'n, 19 Cal.2d 807, at page 810, 122 P.2d 892, at page 894, it is said: 'The doctrine of res judicata precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.' And at page 811 of 19 Cal.2d, at page 894 of 122 P.2d: 'The rule is based upon the sound public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy. (Citations.) The doctrine also serves to protect persons from being twice vexed for the same cause.' Here the original action and the real property action both arose from the same wrong by Mrs. Ahern; that is, the wrongful possession of the real property by her. There can be no question that had respondent in the original action sought damages for this wrongful use and occupancy of the property a judgment therefor would have been proper as well as the judgment ordering cancellation and quieting title.

If the real property action is in fact the same cause of action as the original action the judgment in the first action is a bar in the later action; if, however, the real property action is a different cause of action, the original action only operates as a conclusive adjudication as to such issues as were actually litigated and determined in that action. Todhunter v. Smith, 219 Cal. 690, 695, 28 P.2d 916. The fact that here the original action was determined on a cross-complaint makes no difference; the doctrine of res judicata applies as fully as if a separate action...