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Western Ethanol Co. v. Midwest Renewable Energy

California Court of Appeals, Fourth District, Third Division
Mar 28, 2008
No. G037534 (Cal. Ct. App. Mar. 28, 2008)

Opinion


WESTERN ETHANOL COMPANY, Plaintiff, Respondent and Cross-Defendant, v. MIDWEST RENEWABLE ENERGY, Defendant, Appellant and Cross-Complainant. G037534 California Court of Appeal, Fourth District, Third Division March 28, 2008

NOT TO BE PUBLISHED

Super. Ct. No. 05CC09930

ORDER MODIFYING OPINION AND DENIAL OF PETITION FOR REHEARING

BEDSWORTH, J.

It is hereby ordered that the opinion filed herein on February 29, 2008, be modified in the following particulars:

1. On page 6, footnote 2, after the second sentence which ends with “no such generic ‘claim.’”–delete the remainder of footnote 2 and replace with the following:

“Midwest cannot pretend to have prevailed on some theory of liability (other than breach of contract) which it did not allege or pursue in the trial court. Although Midwest cites Estrin v. Superior Court (1939) 14 Cal.2d 670, 678, for the proposition that “A party is entitled to ‘any and all relief which may be appropriate under the scope of his pleadings and within the facts alleged and proved, irrespective of the theory upon which they may be alleged,’ [citation]” that case is in apposite In Estrin, the trial court had awarded relief based upon a theory which, while not expressly pleaded in the complaint, was apparently argued and supported by evidence at trial. The respondent was arguing the court was without jurisdiction to make an award, because the legal theory upon which plaintiff prevailed had not been expressly pleaded in the complaint.

“The Supreme Court in Estrin rejected the argument, concluding instead that the scope of permissible relief was determined by assessing all of the pleadings, not merely the complaint: “In view of the admissions and the other matters set up by defendant in his answer in the instant case, the issues before the court necessarily would not be limited to the allegations of the complaint . . . .” (Estrin, supra, 14 Cal.2d at p. 676.) In this case, by contrast, Midwest is arguing it was entitled to relief based upon some alternative theory it did not claim to have actually pursued in the trial court — and asking this court to determine the trial court erred in failing to determine it a winner on that unstated theory.

“In making this argument, Midwest is simply confounding the rule applicable to pleading (“[I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967), with the rule applicable to an appeal after trial (“[A]rguments not asserted below are waived and will not be considered for the first time on appeal.” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.).)”

This modification does not effect a change in judgment.

The petition for rehearing is DENIED.

I CONCUR: RYLAARSDAM, ACTING P. J.

I DISSENT: MOORE, J.

I would grant the petition for rehearing. Respondent’s answer to the petition for rehearing concedes in no less than two places that the issue of whether Midwest was entitled to prevail on its breach of contract cause of action was not addressed in this court’s decision. It does so on page 4, where it states: “An opinion is not in error (and, thus, ripe for rehearing) simply because it fails to address each and every point raised by the parties . . . .” And it does so on page 8, where it states, in reference to the issue of whether Midwest proved its affirmative defense of offset: “While the Opinion does not directly address this baseless argument, in noting that Midwest ‘lost on every cause of action asserted by both parties, as well as on essentially every disputed issue’ (Opinion, p. 2) this Court necessarily considered (and disregarded) this argument in rendering its decision.” The answer is: No, we did not.

This court has yet to really grapple with the anomaly that Midwest could obtain a judgment declaring that Western owes it more than $40,000 and yet somehow Midwest was not entitled to relief under its breach of contract cause of action.

Nor is this one of those cases (as is suggested by respondent’s citation to Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1263), where an appellant simply tries to wear down an appellate court by raising numerous “issues” in the form of a multitude of arguments. The issue of whether Midwest was entitled to prevail on its breach of contract cause of action was the very first legal issue raised in its opening brief, and would, logically, be considered before the issue of whether the trial court erred in awarding costs to Western. If the trial court got the question of Midwest’s entitlement to breach of contract damages wrong, that determination necessarily affected the question of whether it should have awarded costs to an otherwise losing party.

The modification to the lead opinion still fails to confront the validity of whether the trial court should have precluded Midwest‘s claim for breach of contract damages. It continues to operate on the assumption that the validity of the trial court’s decision in that regard is not under attack.


Summaries of

Western Ethanol Co. v. Midwest Renewable Energy

California Court of Appeals, Fourth District, Third Division
Mar 28, 2008
No. G037534 (Cal. Ct. App. Mar. 28, 2008)
Case details for

Western Ethanol Co. v. Midwest Renewable Energy

Case Details

Full title:WESTERN ETHANOL COMPANY, Plaintiff, Respondent and Cross-Defendant, v…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Mar 28, 2008

Citations

No. G037534 (Cal. Ct. App. Mar. 28, 2008)