Opinion
G035832
12-7-2006
CLINTON M. HOOSE, JR., Plaintiff and Respondent, v. ROBERT B. BEAUCHAMP, Defendant and Appellant.
Robert B. Beauchamp, in pro. per., for Defendant and Appellant. Heston & Heston and Richard G. Heston for Plaintiff and Respondent.
In a family feud gone berserk, the parties appear in their third appeal before this court. A former father-in-law, who must rue the day he lent money to his daughter and then son-in-law, has spent years endeavoring to obtain payback. The former son-in-law has spent an equal number of years trying to outfox the former father-in-law and avoid repayment. The epic squabble is about to end.
In the last appeal before us (the second one), the trial court, on account of the running of the statute of limitations, had sustained a demurrer in favor of the former son-in-law, in effect blocking the former father-in-laws collection efforts. We reversed and remanded, holding that the complaint was timely filed under the doctrine of equitable estoppel. On remand, the former son-in-law waged a new attack, via a motion for summary judgment, again asserting that the complaint was time-barred. He contended that this court had erred in making factual determinations on appeal, a matter he said was within the purview of the trier of fact on remand, and that the former father-in-law could not demonstrate that the doctrine of equitable estoppel should apply. The trial court denied the motion for summary judgment and, following trial, entered judgment in favor of the former father-in-law.
The former son-in-law, like a battle scarred Energizer Bunny, launches one more attack. He says the court erred in denying his motion for summary judgment, in holding that the complaint was timely filed under the doctrine of equitable estoppel, and in failing to consider his affirmative defenses to the payment of the long overdue promissory note.
This courts prior ruling on the timeliness of the complaint constitutes the law of the case, so the trial court properly denied the motion for summary judgment. Furthermore, the former son-in-laws arguments pertaining to his purported defenses fail as unsupported by either the evidence or citation to the record. We affirm the rulings of the trial court. The matter is over and done with. Its time for the former son-in-law to make good on the debt.
I
FACTS
In 1988, Clinton M. Hoose, Jr. (Hoose) loaned $158,000 to his daughter, Melinda Beauchamp, and her then husband, Robert B. Beauchamp (Beauchamp). Beauchamp represents that his marriage was later dissolved. In 1994, Hoose filed the first lawsuit, to recover monies under the promissory note, and Beauchamp filed a cross-complaint for declaratory relief (Lawsuit No. 1). In its May 17, 1995 judgment in Lawsuit No. 1, the court held that the due date of the promissory note had been extended to December 31, 1998, so no payment was yet due.
In 1996, Hooses daughter and Beauchamp each commenced separate bankruptcy proceedings. The bankruptcy court, by judgment entered May 6, 1998, denied Beauchamp a discharge, having found that he had acted to hinder or delay his creditors. Hooses daughter obtained her discharge in bankruptcy on July 13, 1999.
Pursuant to a trial court order filed November 27, 2001, a writ of execution was issued on the judgment in Lawsuit No. 1. In our March 5, 2003 opinion in the first appeal, we held that the Lawsuit No. 1 judgment was not a money judgment, but was rather a declaratory judgment, and that the trial court had erred in ordering the issuance of the writ of execution.
(Hoose v. Beauchamp (Mar. 5, 2003, G030171) [nonpub. opn.].)
On March 18, 2003, Hoose filed a second lawsuit, again seeking to recover monies owing under the promissory note (Lawsuit No. 2). Beauchamp filed a demurrer, asserting that the four-year statute of limitations on contracts had run. The trial court sustained the demurrer without leave to amend, giving rise to the second appeal. On the second appeal, we held that Lawsuit No. 2 was timely filed under the doctrine of equitable estoppel.
This court, on its own motion, takes judicial notice of its file in Hoose v. Beauchamp (June 16, 2004, G032873) [nonpub. opn.]. (Evid. Code, § 452, subd. (d).)
On remand, Beauchamp filed a motion for summary judgment. The trial court denied the motion and the matter proceeded to a bench trial. At the conclusion of trial, the court awarded Hoose judgment in the amount of $434,455.92 against Beauchamp. Beauchamp appeals.
II
DISCUSSION
A. Introduction:
At this juncture, Beauchamp argues that the court: (1) erred in denying his motion for summary judgment; and (2) failed to consider and to rule upon on his affirmative defenses that he should be excused from any obligation to pay because of Hooses purported collusion and bad faith in connection with efforts to collect on the promissory note. We address these contentions in turn.
B. Equitable Estoppel:
As noted above, in our opinion in the second appeal this court ruled that the complaint in Lawsuit No. 2 was timely filed under the doctrine of equitable estoppel. We then reversed the judgment, remanded the matter, and directed the trial court to overrule Beauchamps demurrer. Despite this ruling, on remand Beauchamp nonetheless argued in his motion for summary judgment that the complaint in Lawsuit No. 2 was time-barred and that the requirements of the doctrine of equitable estoppel were not satisfied. The trial court correctly denied the motion for summary judgment. Our decision in the prior opinion constitutes the law of the case. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.)
Beauchamp filed both a petition for rehearing and a petition for review after we rendered our decision in the second appeal. However, in those petitions, where he could have raised the issue of whether this court had exceeded the scope of its authority in reviewing a ruling on a demurrer, he did not do so. Rather, he focused his attention on rearguing the evidence.
"`The doctrine of "law of the case" deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case. [Citation.]" (Morohoshi v. Pacific Home, supra, 34 Cal.4th at p. 491.) "The determination that a pleading is sufficient or insufficient is clearly one of law, and is governing in the retrial or appeal where the pleading is substantially the same." (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 903, p. 938.)
"The law of the case doctrine applies to this court even though . . . this court may conclude the previous . . . opinion was erroneous. [Citation.] `Indeed, it is only when the former rule is deemed erroneous that the doctrine of the law of the case becomes at all important. [Citation.] The doctrine is, we have recognized, harsh. [Citation.]" (Morohoshi v. Pacific Home, supra, 34 Cal.4th at p. 491.) An appellate court may depart from the law of the case only in limited circumstances. (Id. at pp. 491-492.) "Where there are exceptional circumstances, a court which is looking to a just determination of the rights of the parties to the litigation and not merely to rules of practice, may and should decide the case without regard to what has gone before. [Citations.]" (England v. Hospital of Good Samaritan (1939) 14 Cal.2d 791, 795.) However, "if the rule is to be other than an empty formalism more must be shown than that a court on a subsequent appeal disagrees with a prior appellate determination." (People v. Shuey (1975) 13 Cal.3d 835, 846, disapproved on another ground as recognized in People v. Bennett (1998) 17 Cal.4th 373, 389, fn. 5.) "[J]udicial order demands there must at least be demonstrated a manifest misapplication of existing principles resulting in substantial injustice before an appellate court is free to disregard the legal determination made in a prior appellate proceeding." (Ibid.)
Following the prior appellate opinion in Lawsuit No. 2 as the law of the case does not result in substantial injustice. Although statutes of limitation have many salutary purposes, here there really is no dispute on the fundamental rights and obligations of the parties. Beauchamp borrowed money from Hoose and it has not been repaid. Requiring Beauchamp to pay his debt is not a substantial injustice, irrespective of the peculiarities of the litigation.
C. Affirmative Defenses:
Beauchamp claims that the trial court failed to either consider or rule upon his affirmative defenses. He says that those defenses included collusion and breach of the covenant of good faith and fair dealing in connection with collection efforts on the promissory note. However, Beauchamp fails to cite to any portion of the record showing what affirmative defenses he raised and our review of the clerks transcript shows that he did not even provide this court with a copy of his answer to Hooses complaint in Lawsuit No. 2. Having failed to support his argument with citations to the record, his argument is waived. (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 768.)
Apparently, certain rules of appellate practice bear repeating. "Counsel is admonished that . . . the failure to provide citation to the record is a violation of California Rules of Court, rule [14(a)]. A violation of the rules of court may result in the striking of the offending document, the waiver of the arguments made therein, the imposition of fines and/or the dismissal of the appeal. [Citations.] In addition, it is counsels duty to point out portions of the record that support the position taken on appeal. The appellate court is not required to search the record on its own seeking error. Again, any point raised that lacks citation may, in this courts discretion, be deemed waived. [Citation.]" (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 768.)
Although Beauchamp is appearing in propria persona, the record reflects that he is an attorney.
IKOLA, J., Concurring.
I concur in the judgment because I believe the doctrine of law of the case compels me to do so. But I write separately because I respectfully disagree with the conclusions reached by my colleagues in Hoose v. Beauchamp (June 16, 2004, G032873) [nonpub. opn.] (second appeal), and do not wish my silence to signal endorsement of that decision.
In the second appeal, this court held the facts alleged in the complaint showed the action was timely filed pursuant to Code of Civil Procedure section 355 and the doctrine of equitable estoppel. In my view, section 355 has no application to this case, and the elements of an equitable estoppel are not present. The complaint showed this action was barred by the statute of limitations, and this court should have affirmed the judgment of dismissal following the sustaining of the demurrer without leave to amend.
Despite my disagreement with the opinion in the second appeal, it governs this case. The alleged facts previously ruled as a matter of law as being sufficient to avoid the statute of limitations defense are the same facts shown by the evidence on this appeal.
An appellate court may depart from the law of the case only in limited circumstances. I agree with my colleagues that the circumstances here do not justify a departure from the rule. Accordingly, I concur in the judgment.
We have a second reason for rejecting Beauchamps arguments, to the extent they pertain specifically to the statement of decision. Although he omits to provide a citation to the statement of decision, Beauchamp says that the trial court failed to even mention his defenses therein. However, we note that the statement of decision does state, in a footnote: "[Beauchamp] asserts various affirmative defenses, each of which is rejected." In addition, we observe that Beauchamp says nothing about whether he made a request for a statement of decision and, if so, what controverted issues he requested the court to address. Code of Civil Procedure section 632 provides in part that a "request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision." If a party fails to specify a particular issue to be addressed, that party "is deemed to have waived [his or her] right to object to the failure of the statement of decision to do so. [Citations.]" (City of Coachella v. Riverside County Airport Land Use Com. (1989) 210 Cal.App.3d 1277, 1292.) Inasmuch as Beauchamp has not shown that he made a request for a statement of decision in which he asked the court to address the defenses of collusion and breach of the covenant of good faith and fair dealing, his arguments with respect to the statement of decision are waived.
In addition to claiming that the court erred in failing to consider his affirmative defenses, rule upon them, or mention them in the statement of decision, Beauchamp contends that he presented sufficient evidence at trial for him to prevail on the basis of his defenses of collusion and breach of the covenant of good faith and fair dealing. Beauchamp complains, inter alia, that Hoose treated his daughter as a favored creditor and did not pursue collection efforts against her in the same manner that he pursued collection efforts against Beauchamp. He reminds us that in Lawsuit No. 1, Hoose did not sue his daughter, but only sued Beauchamp. He also says that Hoose sought to collect different amounts of money in the bankruptcies of his daughter and of Beauchamp. In addition, he says that in various proceedings Hoose and his daughter were represented by the same counsel, even though they had obvious conflicts of interest. All in all, Beauchamp insists that he presented enough evidence at trial to show that Hoose breached the covenant of good faith and fair dealing and engaged in collusive conduct with his daughter, and that the court erred in failing to so hold. Based on the minimal evidence he cites in his appellate brief, we are unconvinced.
"It is the appellants burden to demonstrate the existence of reversible error. [Citation.]" (Del Real v. City of Riverside, supra, 95 Cal.App.4th at p. 766.) He has not met his burden.
III
DISPOSITION
The judgment is affirmed. Hoose shall recover his costs on appeal.
I Concur:
OLEARY, Acting P. J.