Roam v. Koop

• Decision Date: 25 September 1974
• Citation: 116 Cal.Rptr. 539,41 Cal.App.3d 1035
• Court: California Court of Appeals Court of Appeals
• Parties: Archie S. ROAM, Plaintiff and Respondent, v. R. M. KOOP, Defendant and Appellant. Civ. 13359.

Page 539

116 Cal.Rptr. 539

41 Cal.App.3d 1035

Archie S. ROAM, Plaintiff and Respondent, v. R. M. KOOP, Defendant and Appellant.

Civ. 13359.

Court of Appeal, Fourth District, Division 2, California.

Sept. 25, 1974.

[41 Cal.App.3d 1037] Iverson, Yoakum, Papiano & Hatch,

Leonard M. Amato, and E. Broox Randall, Los Angeles, for defendant and appellant.

Beam, Duffy & Ure and Byron J. Beam, Santa Ana, for plaintiff and respondent.

OPINION

BY THE COURT.

This is a multiple count action arising out of a series of home repair and remodeling agreements entered into between Archie S. Roam, plaintiff, and R. M. Koop, Countywide Termite Control, and County-wide Construction Company, defendants. The original complaint stated four causes of action based on unlawful misappropriation of funds, fraud, breach of contract and money had and received, and sought both compensatory and punitive damages. By a unanimous jury verdict, Roam was awarded general damages of $22,459, interest of $6,980.17, and punitive damages of $14,718. Koop appeals the judgment following denial of a motion for a new trial.

The sole question presented by Koop on appeal is whether the trial court erred in granting a tort remedy when Roam, after filing his complaint, had levied on certain of defendant's property under a writ of attachment.

FACTS

R. M. Koop was the sole owner of Countywide Construction Company and President of Countywide Termite Control, a corporation. Both the enterprises operated from the same address and together, during the years 1967 and 1968, employed about 35 people. The majority of these employees were employed by the Termite Company. The remaining staff, about three or four, were employed by the Construction Company. Its number remained small since most of the construction work obtained by that company was subcontracted.

In 1967, through a canvassing lead, Roam came to the attention of Koop. Seventy-five years old and retired from the Navy, Roam lived alone in Belmont Shores, California. He resided in a two story duplex which was divided into an upstairs and a downstairs unit. The duplex, owned by him, had been purchased about 30 years earlier. He had continuously resided there since its purchase.

At trial the evidence tended to show that Roam's mental acuity began to deteriorate following the death of his wife in 1965. His eyesight was also failing and in 1965 he was denied renewal of his driver's license. His vision worsened until it reached the point that he was unable to read without the aid of a magnifying glass. Testimony also showed that Roam was easily susceptible to suggestion once his confidence was gained.

Following the initial contact between an employee of the Termite Company and Roam, numerous meetings took place between Roam and Koop. Between March 30, 1967 and February 17, 1969, Roam and Koop entered into a series of 10 construction contracts. The contracts contemplated the repair and remodeling of the duplex. The contracts, entered into in succession, totaled $27,417. Payment was made on each of the separate contracts as each job was completed. Bank of America stock certificates, according to the testimony of Roam, were used as payment for all except the last of the contracts. No record was kept of the number of stock certificates which were given as payment and Roam could not remember the total.

After receiving the stock, Koop transferred it to his personal account with Goodbody and Company. In October 1968, Goodbody and Company issued four checks representing the total proceeds from the sale of the stock, less commissions, in the amount of $20,700. Three of the four checks were made payable to Roam, endorsed by him and then given to Koop or one of his employees. One of the checks in the sum of $7,264.64 was drawn to the order of Koop. In addition Koop requested and received additional sums from Roam's bank account.

At trial an appraiser testified that the total value of Roam's lot and duplex in 1968 was $28,200. Of that sum $3,200 represented the value of the duplex. Other expert testimony showed that not all of the work which had been contracted had in fact been done. Although one contract Additional expert testimony revealed that Roam had been overcharged for certain of the work done, in some instances at exorbitant rates. A contractor in the general area testified that he would have performed substantially all the work called for in the ten contracts for $6,018.88. He concluded that he would receive a fair profit at that price.

specified the installation of a new floor in the dinette, bathroom, kitchen and service porch of the downstairs unit, upon inspection it was found that this work [41 Cal.App.3d 1039] was never accomplished. Another contract provided for the removal of a bathroom wall in the lower unit, the bathroom ceiling upstairs and the replacement of lathing as necessary. An examination of the premises disclosed that this work was not performed. Various others repairs, though included in the contract price and paid for, were also not performed.

The trial court was not guilty of overstatement when, in denying defendant's motion for a nonsuit, it said 'It just seems to be such a plain case of taking advantage of a weak-minded lonely old man that it cries out for an injustice (sic) . . .' He further observed on the motion for a new trial that the result would have been the same had there not been a jury. Understandably, defendant does not attack the sufficiency of the evidence to support the judgment.

DISCUSSION

The central issue on this appeal is whether in a multiple count suit sounding in both tort and contract where a writ of attachment has issued and property levied thereunder, the plaintiff is barred by the doctrine of election of remedies from recovering in tort, although the defendant raises the issue of election of remedies for the first time on appeal.

Broadly speaking, election of remedies is the act of choosing between two or more concurrent but inconsistent remedies based upon the same state of facts. Ordinarily a plaintiff need not elect, and cannot be compelled to elect, between inconsistent remedies during the course of trial prior to judgment. (Williams v. Marshall, 37 Cal.2d 445, 457, 235 P.2d 372; Thorson v. Western Development Corp., 251 Cal.App.2d 206, 213--214, 59 Cal.Rptr. 299.) However, if a plaintiff has unequivocally and knowledgeably elected to proceed on one of the remedies he is pursuing, he may be barred recourse to the other. (Mansfield v. Pickwick Stages, 191 Cal. 129, 130--131, 215 P. 389.) It is to such a situation that the doctrine of election of remedies pertains. The doctrine of election of remedies acts as a bar precluding a plaintiff from seeking an inconsistent remedy as the result of his previous conduct or election. In California the doctrine is theorized on the principle of estoppel. 'Whenever a party entitled to enforce two remedies either institutes an action upon one of such remedies or performs any act in the pursuit of such remedy, whereby he has gained any advantage over the other party, or he has occasioned the other party any damage, he will be held to have made an election of such remedy, and will not be entitled to pursue any other remedy for the enforcement of his right.' (De Laval Pacific Co. v. United C. & D. Co., 65 Cal.App. 584, 586, 224 P. 766, 767; Steiner v. Rowley, 35 Cal.2d 713, 720, 221 P.2d 9.)

In the instant case the original complaint contained various causes of action based upon divergent legal theories. The causes of action were for fraud, unlawful misappropriation of funds, breach of contract, and money had and received. The cause of action for fraud sought both compensatory and punitive damages. After the complaint was filed a writ of attachment was issued and various bank accounts, a safe deposit box and certain real property belonging to Koop were attached. Subsequently the property was released after Koop posted an attachment bond.

Punitive damages are authorized by statute in actions for the breach of an obligation, not arising from a contract, in which the defendant has acted oppressively fraudulently, or maliciously. (Civ.Code, § 3294.) Punitive damages may not be recovered in actions founded in contract. (Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn., 18 Cal.App.3d 1023, 1038, 96 Cal.Rptr. 338; Contractor's Safety Assn. v. Cal. Comp. Ins. Co., 48 Cal.2d 71, 77, 307 P.2d 626.) An action in tort for fraud in which punitive damages are sought is inconsistent with one for money had and received. (Steiner v. Rowley, Supra, 35 Cal.2d 713, 720, 221 P.2d 9.) By pleading causes of action founded in tort and in contract Roam was pursuing concurrent and inconsistent remedies. However, the mere pleading of inconsistent causes of action did not constitute a binding election of remedies since inconsistent counts are permissible. (Steiner v. Rowley, Supra.) But Roam obtained a writ of attachment available solely under his contract action. (Code Civ.Proc. § 537; Stowe v. Matson, 94 Cal.App.2d 678, 683, 211 P.2d 591.) Obtaining an attachment constituted a positive act in pursuit of his contractual remedy. By levying under the writ, Koop was deprived of the use of his property and plaintiff obtained an advantage over him. (Barrett v. Hammer Builders, Inc., 195 Cal.App.2d 305, 316, 16 Cal.Rptr. 49.)

Since plaintiff Roam was pursuing two inconsistent remedies and took unequivocal action available under only one of them whereby he gained an advantage over, and whereby an injury--the loss of use of the property--resulted to koop, presumptively the doctrine of election of remedies is applicable. Two arguments are presented by Roam to overcome the application of the doctrine and its effect--the paring away of the punitive damage award allowable solely under a tort theory of relief.

In his first argument Roam cites Symcox v. Zuk, 221 Cal.App.2d 383, 34 Cal.Rptr. 462. That case stands for the proposition that if...