Stromer v. Browning

Decision Date23 December 1968
Citation74 Cal.Rptr. 155,268 Cal.App.2d 513
PartiesGordon STROMER, Plaintiff and Appellant, v. J. L. BROWNING, Defendant and Respondent. Civ. 11858.
CourtCalifornia Court of Appeals Court of Appeals

Changaris, Trezza & Ithurburn, Yuba City, for plaintiff-appellant.

Downey, Brand, Seymour & Rohwer, by Ronald N. Paul, Sacramento, for defendant-respondent.

PIERCE, Presiding Justice.

Plaintiff Stromer appeals from an order (and modification thereof) denying plaintiff's motion to set aside a judgment in favor of defendant. Additionally, an untimely appeal from the judgment itself is before us. Stromer now admits the notice of appeal was filed too late. That appeal must be dismissed.

On a former appeal of a plaintiff's judgment in this action this court affirmed, and thereafter the California Supreme Court took over and reversed, the trial court's judgment. That reversal was stated in the last sentence of the opinion. It expressed no directions by the court as to the future fate of the litigation. The remittitur signed by the clerk also simply ordered a reversal; nothing further. A form of judgment was thereafter prepared and presented to the trial court by the attorneys then representing Browning. 1 The preamble of the judgment form recited incorrectly: 'and said remittitur having provided directions to this Court to enter judgment for the defendant, J. L. BROWNING.' The form was presented ex parte. The judgment as so presented was signed by the court and entered without notice. It provided for judgment in favor of defendant Browning with costs. The judgment was entered March 6, 1967. Notice of entry of judgment was duly served on Stromer's attorneys. On March 17, 1967, a notice of motion for an order setting aside said judgment was served and filed. The motion was purportedly filed under Code of Civil Procedure, section 473. It was opposed by Browning through his attorneys who also made a motion for summary judgment based upon the proposition no justiciable issues remained to be tried. Both motions were argued together. By order entered October 13, 1967, plaintiff's motion to set aside the judgment was denied.

Two questions are presented: (1) Was it error for the trial court to deny Stromer's motion to set aside the judgment where no showing was made by him that on a retrial of the action evidence could be presented by plaintiff not falling within the 'law of the case' doctrine? (2) When the whole tenor of a decision by an appellate court gives the appearance of the court's actual intention to reverse the lower court's decision with directions will the failure by the court in the order portion (i.e., the last sentence) of the decision to spell out those directions necessarily bar a judgment by the trial court made in accordance with the directions obviously intended but not stated?

Our negative answer to the first question might seem to obviate necessity to answer the second. Coinciding factors, however, spring up as we ponder both problems. Clarity will, we think, be served by a discussion

which covers these factors progressively rather than by treatment of the questions in isolation.

FACTS

The decision of this court on the first appeal of this case was reported in 50 Cal.Rptr. 796. A hearing was granted. The Supreme Court's opinion (dated December 1966) is reported in 65 Cal.2d 421, 55 Cal.Rptr. 18, 420 P.2d 730.

It is important to note that the facts stated in both opinions are substantially identical. Those facts are:

Browning had employed Stromer as a broker to find a buyer for a ranch. A 5 percent commission was fixed. The commission would be payable only out of principal installments on the purchase price actually received. Negotiations followed with prospective purchasers, the Wilbur brothers. After there had been offers and counteroffers, a conference took place. Browning's attorney was present and took notes of the negotiations. The parties reached an agreement orally. 'All agreed, however, that the parties were not to be bound until each had approved and executed the sales documents to be prepared' by Browning's attorney.

Browning was reserving acreage for a duck club. At the conference described, the boundaries of this area, the means of supplying water for the duck pond (through a pipeline) and the location of said line were agreed upon. And, since the Wilburs also planned a duck club, the correlative rights of the parties to the use of water had also been determined.

Preparation of the agreement was delayed when Browning's attorney became ill. Meanwhile, the Wilburs, with Browning's permission, went on the land. The duck season had begun. The Wilburs and Browning both commenced to fill their respective ponds. The methods applied were those contemplated by the parties. The results were not those expected by Browning. The level of his pond dropped. The Supreme Court opinion found that uncontradicted evidence had shown that Browning's duck club was of primary importance to him. When his duck pond level dropped, therefore, he caused his attorney to make changes in the written draft of the agreement. These changes gave him virtual control over the water supply. They included a boundary change. The Wilburs refused to accept the changes and the deal was off.

The only question, under those facts, was whether the trial court's findings and holding that Stromer had earned his commission could be sustained. The Supreme Court answered that question in the negative. There was no dispute as to the facts. The trial court, this court and the Supreme Court applied the same rules: (1) Ordinarily a broker will not be entitled to a commission unless a sale is consummated where his brokerage contract so provides; but (2) as stated by the opinion of the Supreme Court (on p. 424 of 65 Cal.2d, on p. 20 of 55 Cal.Rptr., on p. 732 of 420 P.2d), 'A prospective seller * * * owes a duty to the broker not to act arbitrarily or in bad faith to prevent consummation of the transaction * * *.' If he does so act 'the broker is entitled to his commission even though his contract provides that payment shall be made out of the proceeds of the sale * * *.' Citing the same authorities this court had cited, the Supreme Court reached a conclusion opposite to that which this court had reached. It stated (on p. 427, on p. 22 of 55 Cal.Rptr., on p. 734 of 420 P.2d): '(E)ven if we assume that by changing the terms orally agreed upon, defendant caused the buyers to refuse to enter into a binding contract, it would appear that his actions were nevertheless consistent with the good faith which the law requires of him.' The court reasoned that 'when it developed after the oral agreement was made that if the transaction were completed on the terms orally agreed upon, defendant would not have the full use of the facilities of his duck club, he was not required to consummate the transaction in order that plaintiff would not be deprived of his commission. * * * (H)is action in making the above mentioned changes * * * does not The antepenultimate sentence of the opinion reads: 'Under the circumstances, plaintiff is not entitled to recover his commission.' The last sentence is 'The judgment is reversed.'

show a lack of good faith.' (P. 428, p. 22 of 55 Cal.Rptr., on p. 734 of 420 P.2d.)

A rehearing was sought. The petition therefor raised only the same issue, Browning's bad faith and arbitrary action. 2 The facts upon which the decision had been based were not challenged. The petition was denied.

THE ORDER FORM WAS APPARENTLY INADVERTENT

There was only one theory upon which Browning could possibly have been held liable to pay Stromer under the issues and facts proved at the trial. That issue was: Did Browning arbitrarily or in bad faith change the terms of the purchase and sales contract as agreed to orally? The determination of whether a person has been guilty of arbitrariness or bad faith is a determination of intent and motive. It is tested by his words and actions. When a court is given specific words and actions, the decision which it makes is made as a matter of law. In this case the Supreme Court made a judgment that Browning had not been arbitrary; that he had not acted in bad faith. After a case fully tried, with facts not in dispute, the intent of the Supreme Court to us appears patent. It intended, as we read its opinion, that judgment in Browning's favor be entered. We can find nothing left for the trial court to retry. Except for formalities, the litigation had ended.

THE 'FORM OVER SUBSTANCE' QUESTION

It has been stated: 'An unqualified reversal Ordinarily has the effect of remanding the cause for a new trial on all of the issues Presented by the pleadings.' (Italics ours.) (3 Witkin, Cal.Procedure, Appeal, § 186, p. 2381.) We will not repeat here reference to cases which Mr. Witkin cites to support that well-settled rule. But the rule that an unqualified reversal without directions remands the case and sets it at large for further trial is a General one. In People ex rel. Dept. of Public Works v. Lagiss, 223 Cal.App.2d 23, 45, 35 Cal.Rptr. 554, 568, where the court held the general rule did apply, it stated, nevertheless, that the question is 'whether it was the Intent * * * to reverse the judgment without qualification * * *.' (Italics ours.)

The fact that the rule we discuss is a 'general' rule implies that it has limitations. One limitation is that a case is to be set at large for retrial only when that is the intent of the appellate court. 'Judgment reversed' at the end of an opinion is, of course, strong indication of such intent. But when the opinion as a whole establishes a contrary intention, the rule is inoperative. To hold otherwise would be to make a fetish of form. Our Supreme Court did not give the last sentence such overriding importance in Snapp v. State Farm Fire & Cas. Co. (1964), 60 Cal.2d 816, 36 Cal.Rptr. 612, 388 P.2d 884. There a trial court's...

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