State Farm Fire & Casualty Co. v. Mason, 697 P.2d 793

State Farm Fire & Casualty Co. v. Mason

697 P.2d 793

Colo. Ct. App.

1984

Check Treatment

*1 subsequent respec- during possession by determination of the rental value market property. mortgagee. Real Estate Finance tive interests of See Law, mortgagee 4.31. The supra, at expenses offset

possession entitled to JJ., BABCOCK, SMITH and concur. preserving maintaining incurred and possession against his his property during The mort-

liability profits. for rents and possession is entitled to offset

gagee in utility satisfying and

expenses incurred owing at the time due

water Chase, possession,

he takes see Donohue v. 2 N.E. 84 in effect-

139 Mass. necessary premises to make ing repairs STATE FARM FIRE & CASUALTY tenantable; maintaining premises; COMPANY, Plaintiff-Appellant, premiums for paying property taxes and covering property, Real insurance see §§ 4.32-34; Law, at supra

Estate Finance MASON, individually B. Mitchell making protect the title payments Mitch On-Line d/b/a including payment of sen- property, to the Center, Computer Defendants-Appellees. § 38-39-112, (1982 C.R.S.' ior liens. See No. 83CA1363. 16A). Repl.Vol. Appeals, Colorado Court of Here, plaintiff attempt not did Div. III. satisfy The record establishes the note. entry property into the defendant’s Nov. 1984. Therefore, peaceful. plaintiff’s claim 20, 1984. Rehearing Denied Dec. barred, possession, otherwise the amount due

contingent payment on Denied March 1985. Certiorari proper accounting the note to a on parties. Eisen v. Kosta between

kos, N.J.Super. 282 A.2d

Ill

Finally, contends that defendant inserting error

trial court committed into claim for abuse

element of malice his agree defendant that process. We with element of claim for

malice is an Corp. process. Aztec Sound

abuse of Co., Colo.App. Leasing Western States Therefore,

remand, omitted malice should be

element. presented by remaining contentions or, in merit parties are either without holding, need not be addressed.

light of our issues

Further, not address other we do retrial. may arise on is reversed court’s

The trial remanded for an account- matter is

and the herein, holdings ing with consistent *2 Melat,

The Law Firm Justin R. Ed- LaBarre, Springs, ward J. Colorado for plaintiff-appellant.

Tegtmeier Sears, P.C., Benjamin & S. Waxman, Tegtmeier, Richard L. Colorado Springs, for defendants-appellees. METZGER, Judge.

Plaintiff, Casualty State Farm &Fire (State Farm), Company appeals the summa- ry judgment defendant, entered Mason, individually B. Mitchell and d/b/a (Mason). Computer On-Line Center We re- for proceedings. verse remand further 5, 1982, July On Mason notified State that a fire occurred at his busi- Subsequent investigation ness. revealed fire was act of arson. State pay Farm refused to fire insurance benefits and, to Mason February filed a petition declaratory judgment for to have payment adjudicated. to refuse 18, 1983, July year On more than a after fire, prior to declaratory but trial in the attorney the district charged third-degree Mason with first and preliminary hearing, arson. After a dismissed the criminal finding attorney had failed prob- sufficient evidence show able cause.

Thereafter, hearings on declaratory commenced, judgment action and the trial court, judge presiding, with a different granted summary Mason’s motion judg- estoppel. based on collateral court found that State Farm had acted as ego alter to the district supplying transcripts depositions, financial records obtained and an audit it had business, completed by vig- of Mason’s orously encouraging over the year. course of a granting State Farm contends that the summary judgment Mason’s motion agree. error. We estoppel prevents relitiga Collateral tion between the same of an issue require prosecution fact determined valid nor can ultimate once require Swenson, he dismissal....” judgment. and final Ashe 90 S.Ct. L.Ed.2d 469 U.S. § 16-5-205, (1978Repl.Vol. See also C.R.S. Hoehl, People v. 8). Lucero, as we noted (Colo.App.1980). (Colo.App.1980),“[wjhile occasionally may victim’s wishes color the *3 of col The elements the doctrine of decision, Attorney’s manifestly estoppel Pomeroy lateral are enunciated in they do not control it.” Waitkus, v. 517 P.2d Although concededly Farm State had (1973), 1) as follows: Was the issue decided substantial interest in of the the outcome prior adjudication identical with the the record indicates it 2) presented question? in one in the action hearing. no control over the judgment Was there a final on the merits? Indeed, its attorneys attempt made no to 3) against is party plea Was the whom the participate in or to advise the district attor- privity party in with party asserted a ney during preliminary hearing. State 4) prior adjudication? to the And did attorneys Farm’s could not examine wit- party against plea is whom the asserted argument. nesses or Farm State litigate have a and fair full supplied its entire file to the district attor- adjudication? the issue in the however, ney; Reporting the Arson Infor- §Act, 10-4-1001, seq., mation et facts C.R.S. Applying these criteria to the (1984 Cum.Supp.) that this be case, that, mandated conclude while the in we fulfilled, done. remain first two have two been require Pomeroy The third unsatisfied. that we note the district exist State privity that must between attorney of the appeal the dismissal Colorado, Farm and the has not State charges against prelimi Mason after the “directly A is one who is been met. not Farm could nary State matter, and had a interested law, appealed this decision as a matter defense, right to make a or to control standing it no do so. we since had judg proceeding, and to from the adopt the view set out v. America ment.” Bernhard Bank (1982) that 'n, 19 Savings Trust Ass Cal.2d

National & issue in a subse relitigation of the same (1942) (adopted in Mur not quent between the is Co., 30 phy v. Northern Colorado Grain pre whom precluded (1971) Colo.App. and cited not, sought could as a matter clusion Waitkus, approval Pomeroy v. su with law, review of the have obtained ). pra in the initial action. Here, the criminal action was instituted City v. Mason’s reliance Brown attorney, who cannot be said by district York, 80 A.D.2d 436 N.Y.S.2d New inter- “represent” Farm and its State York, (1981) Irizarry City New representative ests, general except as a 357 N.Y.S.2d 756 Misc.2d people of the State the interests collateral of his contention that support supreme As court held our Colorado. here, Unlike misplaced. estoppel applies Dennis, 164 Colo. here, Irizarry Brown and the facts both (1967): es- application of collateral dealt with the involving only govern- alleged toppel crime is a to civil cases for an “Prosecution entities, private interests. mental not of the State litigation in which the legal city are distinct repre- While a state and a plaintiff of Colorado is entities, pros- the criminal their interests in Attorney. The is the District sentative privy to made one witness, ecution those eases or the victim of the complaining Byrne, crime, since other. Warren over the has no control (2d Cir.1983). neither it. He can he Here, BABCOCK, Judge, dissenting. privity order conclude that between the and State respectfully I dissent. existed, Farm we to assume application Central to the doctrine charge the decision to Mason was estoppel here is resolution made the district privity the issue exists whether between view, attorney. adopt We refused to County the El Paso Prosecutor since support it finds no in either Company. cir- Insurance record or the law. fully cumstances of this case warrant Further, element, the fourth Pomeroy trial court’s conclusion as to this issue and requiring estoppel applied that collateral application the doctrine of collateral only party against when a plea estoppel against whom the State Farm. asserted has had full and fair “Privity estoppel purposes is a crea- litigate in prior adjudication, the issue particular circumstances ture *4 also remains previously unsatisfied. As may variety be described of terms noted, present argu- State Farm could not including identity’ ‘substantial ... appeal examine nor the representative’ status as a ‘virtual ... trial court’s dismissal the criminal the label, is- the Whatever fundamental Moreover, charges. the record indicates party sue is whether the against whom subpoenaed twenty that State Farm wit- estoppel is asserted has a sufficient declaratory judgment action, nesses for the identity interests with the losing liti- only prelimi- two whom testified at the gant in the suit to the make asser- nary hearing, investigator and that its main judicial finality tion consistent with testify at the litigants fairness to all involved. The Additionally, we note that the district attor- question is and one sub- factual ney could not have called the de- stance not form.” fendant, as a witness at the Scientology Linberg, v. 529 Church of hearing, and that Mason chose not to testi- (emphasis (C.D.Calif.1981) add F.Supp. 945 fy preliminary hearing. at the In a civil Electric, Levine, ed); see Inc. v. Expert action, State Farm could have at least denied, (2d Cir.1977), cert. 554 Asplin called v. Mason as witness. 300, 903, 190 98 54 L.Ed.2d 434 U.S. S.Ct. Mueller, 687 (Colo.App.1984). P.2d 1329 (Colo.App. No. (1977); Tynan v. 8, 1984). 83CA0590,

Mason asserts that State November Farm’s witness- provided testimony es would have that was prosecutes “One who defends a suit immaterial, cumulative, or that constituted name of another to establish and hearsay. specu- inadmissible findWe this protect right, his own or who assists unpersuasive. lation be to State Farm de- prosecution an action or defense serves the its case. in aid some interest his own is as much bound as he would be he had acknowledge While we need final- been a to the record.” ity consistency system, judicial in our economy operate deprive must 147, v. Montana United 440 U.S. anof actual heard. (1979) (empha- 99 59 L.Ed.2d 210 S.Ct. Waitkus, Pomeroy v. Farm State added). Identity sis interest between day has had its court. upon linchpin privi- is ty determined as an element reversed, summary judgment The Pomeroy, Waitkus v. 31 estoppel. proceed- the cause is remanded for further (1972), rev’d Colo.App. P.2d ings. Waitkus, grounds, Pomeroy other v. Colo. 517 P.2d 396 BERMAN, J., concurs. Bernhard Bank of majority The cites Ass’n, BABCOCK, J., Savings America National Trust & dissents. (1942) attorney in liminary hearing. State Farm’s 19 Cal.2d “directly who this case advised the trial of State privy definition of a as one matter, subject prosecution. a Farm’s desire to seek Mason’s interested and had prosecutor appeared or to one occasion the defense, to make control On judg- before the court to assist in the coordi- 'proceeding, added) (emphasis This definition nation of this action with ment.” rigid emphasized lan- case. overly in that the It is evident that State implies sought conviction the ar- guage that for one be a Farm Mason’s charge bringing as a ease to joinder one must have been son before this party in the first action. While Bernhard conclusion. Waitkus, supra, in Pomeroy

was cited majority Farm concedes issue. privity was not there an had a substantial interest the outcome was cited in Mur the criminal but asserts that Bernhard Co., “represent” does not phy v. Northern Colorado Grain contrary, Inc., Farm and its interests. On the Colo.App. of res Mason’s conviction in the criminal case plea relative to who assert judicata against It have been conclusive in whom. was held action. judicata could be asserted defendant State res § 85, plaintiff, e in the later action who comment see River had lost identical issue defendant North Insurance Co. Militello, though earlier even defendant Colo. *5 in the later action neither a to or It is obvious that State Farm could privity with a to the earlier action. compel filing of as a matter of law the Hence, any privity Murphy in definition of charges or the hear- “conduct” pure dictum. However, say ing in the criminal case. rigid jure over longer by are that State Farm had no de control “Courts no bound privies prosecution of their the misses the mark because definitions Farm, fact, estoppel or of for State crimi- applying of collateral a matter but purposes been Rayo charges ITT nal arson would judicata.” res United States v. (9th And, Inc., Cir.1980). prosecution the nier, against filed Mason. substantially upon Farm’s Thus, identity the of relied focus should be on case at party litigant product and as the basis interest between the first work although not party against doctrine the third whom the plainly had a sufficient party, in the and de State Farm light asserted of nature “laboring conduct of the crimi- participation in oar” in the gree party’s of that third collateral principles action to actuate of v. United nal the action. See Montana States, su- Rayo estoppel. Montana v. United supra; v. ITT United States finding privity (Second) of The trial nier, Inc., supra; pra. court’s Restatement § binding on and supported the record Judgments 39. supra. Tynan, appeal. Here, year of a the course over judgment general is that where eventually ob- The rule vigorously sought and defendant, the acquittal has entered for Farm of prosecution. State tained Mason’s proof in be- relative burdens of prosecution with its difference supplied the pre- civil actions in this the criminal and depositions obtained tween transcripts of application the defendant), the doctrine (including finan- cludes that of action civil case. United during estoppel in the by Mason dis- supplied cial records Firearms, v. One Assortment of Mason’s business. States covery, and an audit — -, L.Ed.2d 104 S.Ct. his Amend- U.S. assert Fifth Defendant Judg- (Second) in self-incrimination against privilege ment § (1980). is so g This to ments comment was available this evidence acquittal in the judgment of pre- the at the because admissible prosecution the negate possibil- criminal does not appealed, the became final and conclusive ity that the matter there in issue of Mason State Farm this established preponderance the evi- declaratory judgment action. dence civil case. See United States identity I would hold that State Farm’s Firearms, v. One Assortment 89of prosecution of interest with the in the crim- government the not ordi- does degree light inal of its narily have right meaningful appellate therein, participation made State Farm a from acquit- review a criminal is, prosecution. thus, of the There (Second) tal. Judg- See Restatement identity of interest and in both issues § 85, (1980). “Hence, g ments comment it criminal and civil and State be a acquittal rare case which an state, through thereby had a full and could result preclusion against litigate fair those issues government privy] subsequent [or proceeding. civil action.” Restatement Tynan, supra. g comment The attempts majority distinguish exception rare exists this case. supporting City cases Brown v. Newof acquitted upon Mason was not a failure York, 80 A.D.2d 436 N.Y.S.2d 37 prosecution prove that he had Irizarry York, v. City New beyond committed arson a reasonable 79 Misc.2d N.Y.S.2d doubt. Rather were “dis- However, supposed distinction that the missed” because the could not privys separate there “governmental were probable establish cause to Ma- believe that significance entities” is without re- because son had committed the arson. gardless “entity”: of the nature of the preliminary hearing At preclude parties contesting “To considers the evidence in light most they matters that a full prosecution. favorable Hunter v. litigate fair protects their Court, expense adversaries from and vexa- (1975). Probable cause is established lawsuits, attending multiple tion con- person “evidence sufficient to induce *6 judicial serves resources and fosters re- ordinary prudence and caution conscien- judicial by minimizing liance tiously to entertain a reasonable belief possibility of inconsistent decisions.” the defendant committed Montana v. United charged.” People Treat, crimes (1977) (emphasis Colo. Hence, I affirm the trial court added). And, preliminary hearing at judgment. by rigid

trial court not bound rules of Quinn, People v. evidence. See 183 Colo. BERMAN, J., concurs. (1973). Thus, prose- P.2d 420 hearing cution’s burden at the BABCOCK,J., dissents. substantially prepon- less than that of a of the evidence. derance

People dismissal of following hearing 21(a); reinstatement.

seek their See C.A.R. Root, (Colo.1982); P.2d 562 Court, ex rel. Leidner prosecution’s privy, as the “probable to be-

could not establish cause” arson.

lieve that Mason had committed the

Therefore, dismissal, which was not