Perry v. Robertson

• Decision Date: 17 May 1988
• Docket Number: No. C000253,C000253
• Citation: 201 Cal.App.3d 333,247 Cal.Rptr. 74
• Court: California Court of Appeals Court of Appeals
• Parties: Renae PERRY, Plaintiff and Respondent, v. Pam ROBERTSON et al., Defendants and Appellants.

Page 74

247 Cal.Rptr. 74

201 Cal.App.3d 333

Renae PERRY, Plaintiff and Respondent, v. Pam ROBERTSON et al., Defendants and Appellants.

No. C000253.

Court of Appeal, Third District, California.

May 17, 1988.

Rader, Rader & Goulart, Richard H. Gray, Sacramento, for defendants and appellants.

James J. Christianson, Quattrin, Johnson, Campora & England, Johnson & Campora and David B. Johnson, Sacramento, for plaintiff and respondent.

BLEASE, Associate Justice.

This is an appeal from an order denying a motion to tax costs. Renae Perry obtained a favorable verdict in an action against the defendants, real estate brokers and salespersons, asserting liability for inadequate compensation received for the sale of her house attributable to their negligence in drafting the written sales agreement. The defendants acted for Perry under a written listing agreement which provided: "If action be instituted to enforce this agreement, the prevailing party shall receive reasonable attorney's fees and costs as fixed by the Court." Perry filed a timely motion for an award of costs and attorney's fees. Defendants opposed the motion contending that a fees award would be improper because Perry had pursued her cause of action as a tort rather than as a contract. They renew that contention on appeal.

We will conclude that Perry's pleading put in issue both contract and tort theories of recovery. Since the remedy sought and obtained--damages measured by the amount lost by the drafting error--is the same under either theory, Perry was not required to elect a remedy prior to the request for attorney's fees. The request for attorney's fees, as costs available only in a contract action, thus manifested an election to treat this tort-contract ¹ as a contract. We will affirm the order awarding fees.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

FACTS

Perry's complaint, in pertinent part, makes the following allegations. Perry engaged defendants Pam Robertson and Tom Kiernan Realtor, incorporated, (Kiernan) to act as her agents for purposes of selling her house at 2313 Thompson Way, by means of a written listing agreement executed in June 1980. Perry did not have a copy of the agreement but asserted she would amend the complaint to incorporate it by reference. In January 1981 Robertson informed Perry that a buyer had been found. Perry met with the prospective buyer at a Kiernan office. In the presence of Robertson and defendant Barney Russell, the manager of the office, Perry negotiated an agreement for the sale of her house. The terms of the agreement included, as consideration owed Perry, an ownership interest in another house at 2622 Erin Drive and the right to reside in that house as of March 1, 1981 in return for making the mortgage payments. Robertson then prepared a writing ostensibly setting forth the agreement and Perry signed it.

Robertson was negligent in failing to set forth the full agreement negotiated by Perry in the writing she prepared. Robertson later negligently prepared escrow instructions without any reference to Perry's acquisition of an ownership interest in the Erin Drive house. As a result of the negligent preparation of the escrow instructions escrow closed to the financial detriment of Perry.

The buyers did not abide by the promises to convey to Perry an ownership interest in the Erin Drive house and to put her in possession of those premises and on April 18, 1981, caused her to be served with a three-day notice to pay rent or quit her residence at 2313 Thompson Way. Perry complained to Russell that the transaction had been handled improperly. Russell told them not to worry, not to get a lawyer, and that something would be worked out. He failed thereafter to take any action on her behalf.

As a result of the negligence of Kiernan, Russell and Robertson, Perry's property was lost to her and she received substantially less than its fair market value as the sale price. Perry also suffered consequential bodily injury and incurred medical expenses.

Defendants Kiernan, Russell, and Robertson jointly answered this complaint with a general denial. Their answer seeks, inter alia, their attorney's fees incurred in defending the action. At some point prior to trial defendants admitted that they had been negligent, leaving as issues for trial the nature and extent of Perry's damages. In the fall of 1982 both sides filed a form at-issue memoranda in which, in the boxes under "Nature of Action", each checked "Contract" and "Negligence", to which each appended the typewritten notation "Misrepresentation." In a subsequent form at-issue memorandum filed by Perry, she identified her theory as solely that of contract by checking only the box labeled "Contract."

Approximately two weeks before trial Perry's counsel sent a letter to counsel for defendants explaining her position on settlement of the case. The letter asserted: "we allege the written listing agreement as the basis for the breach of the obligation owed by your clients to Ms. Perry." It also related Perry's intention to seek attorney's fees under the provision of the listing agreement at the conclusion of the action.

At the trial the matter was submitted to the jury under instructions requested by Perry that "[i]n calculating the damage to plaintiff for her loss of property, the value of such property to her should be the value of such property, less any benefits actually received by her." The jury returned a general verdict awarding Perry damages in the amount of $12,781 against the defendants. The record on appeal does not contain a reporter's transcript of the proceedings at trial. Within ten days after entry of the judgment Perry filed a motion for an award of costs and attorney's fees. Defendants opposed the award of costs and attorney's fees, the latter on the ground that Perry had pursued a cause of action for negligence, a tort, and the action was therefore not an action on the contract within the meaning of Civil Code section 1717. The trial court ruled that Perry should recover her fees, reasoning that her cause of action sounded in tort and in contract and that she had made no irrevocable election to pursue only her tort remedy. We will affirm the judgment.

DISCUSSION

I

Defendants contend that the trial court erred in awarding Perry attorney's fees as the prevailing party pursuant to Civil Code section 1717 because Perry's action, as prosecuted, sounds in tort and is not an action "on a contract" as required by that section. ² (See e.g. Pearl, Cal. Attorney's Fees Award Practice (Cont.Ed.Bar Supp.1987) § 1.6A, pp. 7-8; 7 Witkin, Cal. Procedure (3d ed. 1985) Judgment, § 143, pp. 568-569.) So framed, the dispositive question is whether Perry's pleading served to put the contract theory in issue.

A.

At the outset we note that defendants were given actual notice that Perry intended to pursue a theory of breach of contract despite their protestations to the contrary. Defendants were so informed by numerous means, including the trial setting memoranda and the letter sent by Perry before trial stating that attorney's fees were sought.

If defendants had lingering doubts, they unaccountably eschewed the means by which the plaintiff's theories might have been brought into explicit focus, such as contention interrogatories, a pre-trial conference statement, a motion in limine or appropriate instructions to the jury. Defendants have not indicated any manner in which the lack of greater specification of the terms of the listing agreement deprived them of an opportunity to demur or misled them concerning Perry's intent to pursue a breach-of-contract remedy. Defendants made no challenge to the pleading. The defendants' general denial denied only the material allegations of the complaint. (Code Civ.Proc., § 431.30, subd. (d).) Moreover, defendants waived their defense to liability, tendering only the question of damages to the jury. In this posture, defendants' implied claims to ignorance of Perry's intentions are implausible.

Thus, the sole issues to be decided are whether the complaint pled a claim in contract and whether Perry elected a consistent remedy. We conclude that the complaint did so and that the damages sought and obtained are consistent with a remedy in contract or tort. Accordingly, there was no remedy of consequence to elect except for attorney's fees and defendants are patently not in doubt about Perry's election on that score.

B.

The dispute concerns an oral agreement for the sale of Perry's house negotiated by defendants. The complaint alleges that, in the reduction of the agreement to writing, defendants negligently failed to include, as consideration for the sale, an ownership interest in another house, resulting in a substantial reduction in the amount received for her house and consequential personal injuries and medical expenses. Defendants' argument is bottomed on the premise that the claim so plead is inconsistent with a legal theory of breach of contract. The premise is untenable.

"There is in this State but one form of civil action for the enforcement or protection of private rights and the redress or prevention of private wrongs." (Code Civ.Proc., § 307.) " 'Th[is] statute makes no distinction in matters of form between actions of contract and those of tort, and relief is administered without reference to the technical and artificial rules of the common law upon this subject....' " (4 Witkin, Cal. Procedure (3d ed. 1985) § 21, p 65, quoting from Jones v. Steamship Cortes (1861) 17 Cal. 487, 497.)

In pleading a claim for relief, California follows the " 'primary right theory of Pomeroy.' " (See 4 Witkin, Cal. Procedure, supra, § 23, relying on Pomeroy, Code Remedies (5th ed. 1929) § 347, p. 528.) In pleading the question is: " 'Does the complaint state in ordinary and concise language facts sufficient to constitute a cause of action? That is the question, and not whether it is sufficient to show ... any ......