Walters v. Marler
| Decision Date | 23 June 1978 |
| Citation | 83 Cal.App.3d 1,147 Cal.Rptr. 655 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Calvin WALTERS, Jr., Plaintiff, Respondent and Appellant, v. Irvine A. MARLER and Sharon E. Marler, Defendants, Cross-Defendants, Appellants and Respondents, Walter James Rector, Defendant, Respondent and Appellant, Lampliter Realty, and Kenneth Proulx, Defendants, Cross-Complainants, Respondents and Appellants, Irvine A. Marler et al., Cross-Defendants, Cross-Complainants, Respondents and Appellants, Jo Helen Holman Walters, Cross-Defendant and Respondent, Transamerica Title Co. et al., Defendants, Cross-Defendants and Appellants, James Leseman, Cross-Complainant, Cross-Defendant, Respondent and Appellant. Civ. 40396. |
Robert L. Mezzetti, San Jose, for plaintiffs Walters.
James A. Kennedy, Oakland, for defendant Transamerica Title Ins. Co.
Eleanor M. Kraft, San Jose, for Marler, et al., Rector, Lampliter, et al. and Fickle.
Albert M. Zecher, San Jose, for Marler.
Robert S. Sturges, Caputo, Liccardo, Rossi & Sturges, San Jose, for Lampliter et al.
James E. Jackson, Cupertino, for Rector.
Peter J. Daniels, Sunnyvale, for Fickle.
Atwood & Hurst, Stanford H. Atwood, Jr., Robert Knox, Richard H. Gray, John H. Aspelin, San Jose, for amici curiae.
Calvin O. Walters, respondent, commenced this action against Irvine A. Marler and Sharon E. Marler, appellants, for specific performance of an agreement to deed Walters a house and certain real property. Walters also sought damages. Walters amended the complaint to seek restitution based on rescission, reformation, damages for fraud, negligence, breach of fiduciary duty and for breach of contract. He named as defendants, in addition to the Marlers, Walter James Rector, individually and doing business as Action Realty Co., Roberta Fickle, Lampliter Realty Inc. (hereinafter Lampliter), Kenneth Lee Proulx, individually and doing business as Lampliter, James Leseman, Transamerica Title Insurance Company (hereinafter Transamerica), Wells Fargo Bank, and American Securities. 1
The Marlers filed a cross-complaint against Walters, Rector, Action, Lampliter, Proulx, Leseman and Transamerica for rescission on ground of mutual mistake; a second cause of action against Leseman, Fickle, Rector, Lampliter and Proulx for breach of contract by giving Transamerica an erroneous description of the property and in a third cause of action against Transamerica for breach of escrow agreement by incorporating false representations in the American Land Title Association (ALTA) policy.
Lampliter, Proulx and Leseman filed a cross-complaint against the Marlers for indemnity for all losses, costs and attorney's fees incurred by them in defending the action by Walters.
At the trial, the matter was submitted to the jury on several different theories. On the Walters' complaint: negligence against all defendants, breach of contract against all defendants except Fickle, breach of a third party beneficiary contract against Transamerica, negligent misrepresentation against all defendants and intentional misrepresentation against all defendants. On the cross-complaint of the Marlers: negligence against all cross-defendants, breach of contract against all cross-defendants and breach of third party beneficiary contract against Transamerica. On the cross-complaint of Leseman, Lampliter and Proulx against the Marlers, the case was submitted to the jury on a theory of implied indemnity. The jury was given a separate verdict form for each theory. The court also instructed the jury that as soon as it agreed on any one verdict form on the complaint, one verdict form on the Marlers' cross-complaint, and one verdict form on the Leseman, Lampliter and Proulx cross-complaint, that would be its verdict.
The jury returned three verdicts on the complaint and two on the Marlers' cross-complaint contrary to the judge's instructions that they should return only one. The court then returned the verdict forms to the jury with renewed instructions to return the verdict on only one form.
The jury thereupon returned a single verdict on the complaint, a single verdict on the Marlers' cross-complaint, and a single verdict on the cross-complaint of Lampliter, Leseman and Proulx. On the complaint, the jury returned its verdict on the form "Verdict on Claim for Negligent Misrepresentation." This verdict was in favor of plaintiff Walters against all defendants in the sum of $105,000, plus interest, plus punitive damages of $5,000 against the Marlers and punitive damages of $75,000 against Transamerica.
On the Marlers' cross-complaint, the jury returned its verdict on the form "Verdict Breach of Contract Based On Third Party Beneficiary Rights." This verdict was in favor of the Marlers and against Transamerica in the sum of $21,000. The jury made no other findings on the cross-complaint.
On the cross-complaint of Leseman, Lampliter and Proulx, the jury returned a verdict for the Marlers.
The issue of attorney's fees had been reserved, by stipulation, for decision by the court. After the trial, the judge awarded plaintiff $43,150 in attorney's fees against all defendants; awarded the Marlers $19,745.70 in attorney's fees against Transamerica; and awarded Lampliter, Leseman and Proulx $15,307.50 in attorney's fees against the Marlers.
After hearing the various motions for new trials, the judge ordered that the Marlers be granted a new trial unless plaintiff consented to remit the $5,000 in punitive damages awarded against them (which plaintiff did); granted the motion of Proulx for judgment notwithstanding the verdict; and otherwise denied all motions.
All parties except Proulx have appealed. Plaintiff appeals only from the judgment notwithstanding the verdict rendered in favor of Proulx. The Marlers appeal from the judgment against them in favor of plaintiff and from the judgment for attorney's fees against them in favor of Lampliter, Leseman and Proulx but not from the award of only $21,000 on their cross-complaint against Transamerica and not from the judgment rendered against them on their cross-complaint against the other cross-defendants. Transamerica appeals from the judgment against it on the complaint and on the cross-complaint and from the order denying its motions for judgment notwithstanding the verdicts. Fickle appeals from the judgment against her in favor of plaintiff. Rector appeals from the judgment against them in favor of plaintiff. Lastly, Lampliter and Leseman appeal from the judgment against them in favor of plaintiff and from the judgment against them on their cross-complaint against the Marlers.
Prior to 1944, one Tom Blanchard and his wife acquired six contiguous parcels of real property. The property contained 11.6 acres and was apparently treated as a single parcel. Blanchard constructed a house on parcel 1 with the driveway extending onto parcel 4. The sanitary system extended some 125 feet north from the house on parcel 1. Sometime prior to 1967, the county assessor erroneously assessed all improvements on the property to parcel 4. On Blanchard's death in 1969, the Wells Fargo Bank, as co-executor of his estate, had the property surveyed. The surveyor's map erroneously showed the house to be located entirely on parcel 4.
In 1971, the Marlers purchased the entire property (11.6 acres) for $95,000, through Fickle, a sales person employed by Rector doing business as Action Realty Co. To consummate the sale, an escrow was opened with Transamerica and a preliminary title report issued on parcels 1 through 6. The report made no mention of any improvements on the property. To finance the sale, the Marlers obtained a loan of $60,000 from Columbus Savings and Loan Association, to be secured by a deed of trust on parcels 1 through 6. Both the Marlers and Columbus obtained title insurance policies through Transamerica. Neither policy made any mention of the location of improvements. Columbus agreed to make a further advance of $15,000 to the Marlers for an addition to be built on the house. Transamerica issued an amended preliminary title report covering parcels 1 through 6; no mention was made of any improvements.
Transamerica then issued a policy to Columbus which erroneously covered only parcel 4. Ten days later, Transamerica issued a foundation endorsement which by its terms insured Columbus against loss up to $15,000 if the improvements were not located in parcel 4. Though the endorsement contained the notation "inspected" no evidence other than the endorsement was introduced at trial that the inspection had been made.
The Marlers completed the construction of the addition to the house and extended the bedroom wing on to parcel 4. At the same time, they listed the house and "one acre plus" for $125,000 with Fickle of Action Realty. The Marlers told Fickle the "one acre plus" was the area immediately around the house. It was understood the exact boundaries would be defined by a survey. The Marlers and Fickle testified they thought the house was on parcel 4.
Early in 1973, Walters was looking for a house in the area and contacted Leseman, a real estate broker associated with Lampliter Realty. Leseman told Fickle that Walters would buy the property if more land was available. Fickle stated that the Marlers might sell all of parcel 4, but there would have to be a survey. Leseman said there was no time for a survey and asked what parcel 4 included. Fickle showed Leseman a plot map and marked the location of the improvements as being within the boundaries of parcel 4.
When Leseman took Walters to view the property, Leseman misread the map and thought the top of the map was north when in fact it was east. As a result, Leseman's pointing out of the property to Walters was erroneous.
On February 7, 1973, Walters and the Marlers entered into an agreement for the purchase and sale of parcel 4 and...
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