Elizabeth S. DAVIES, Executrix of the Estate of Valentine Davies, Deceased, Plaintiff and Appellant, v. Norman KRASNA, Defendant and Respondent.
Elizabeth Davies appeals from a judgment by the trial court, sitting without a jury, declaring her action against respondent Norman Krasna for breach of a confidential relationship barred by the statute of limitations. The appeal lies. (Code Civ.Proc., § 904.1, subd. (a).)
Two issues are presented. (1) Whether appellant's amended complaint states a cause of action; and (2) whether the trial court erred in its determination that appellant's cause of action is barred by the statute of limitations.
Valentine Davies, appellant's late husband, a professional movie writer, submitted a written story in confidence in 1951 to respondent, a professional writer and producer, for consideration by the latter for possible use as the dramatic core of the story of a future movie.2 In violation of that confidence, respondent then disclosed for his own purposes the essential ideas in Davies' story to a substantial portion of the story market in 1954 and 1955. Specifically, respondent told Bob Hope, Jack Benny, George Burns, Jackie Gleason, Desi Arnaz, and various Hollywood agents the ideas Davies had told him in confidence.
Davies became aware of respondent's conduct at an unspecified date sometime prior to November 11, 1955, after someone told him about a movie in production which the person said was identical in ideas to those of Davies. Two weeks later Davies read about the movie and respondent's involvement in it in Variety, a trade publication within the entertainment industry. Davies telephoned his agent, Ned Marin, told him to get in touch with respondent's agent, and asked Marin to investigate the matter. Ten days later Marin informed Davies that respondent's movie deal had fallen through and no movie would be produced.
In 1958 respondent participated in the production of a Broadway play entitled ‘Who Was That Lady I Saw You With?’, incorporating Davies' ideas. The following year the play was made into a movie, to the alleged profit of respondent. Davies' original complaint was filed on November 19, 1959. Appellant's amended complaint prays for recovery of $500,000, presumably respondent's profits from the movie and play, plus exemplary damages of $1,000,000.00.
The Amended Complaint States a Cause of Action
We deal first with the threshold contention, asserted by respondent,3 that appellant's amended complaint fails to state a cause of action due to the recent United States Supreme Court holdings in Sears, Roebuck & Co. v. Stiffle Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661; Compco Corp. v. Day-Bright Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669, and Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610.
In Sears, supra, and Compco, supra, the Supreme Court held that article I, section 8 of the United States Constitution, and the federal implementing statutes, preempt the states from prohibiting the copying of that which the federal patent and copyright laws have left in the public domain. (Compco Corp. v. Day-Bright Lighting, Inc., supra, 376 U.S. at p. 237, 84 S.Ct. at p. 782, 11 L.Ed.2d at p. 672.) In Lear, supra, the Court held that, pursuant to the Sears-Compco doctrine, states should reevaluate the extent to which state law in the field of contracts is federally constitutional when applied to protect unpatentable secret ideas. (Lear, Inc. v. Adkins, supra, 395 U.S. at p. 675, 89 S.Ct. at p. 1913, 23 L.Ed.2d at p. 625.) As the California Supreme Court has not made this reevaluation, respondent urges us to do so and then to hold that appellant's ideas are not protectible by state law, and thus that appellant's amended complaint fails to state a cause of action.
We decline to so hold. Even if Lear, supra, a patent case involving contract law applies to a non-contractual breach of confidence case in the copyright field, we believe it would be improper for us, a lower appellate court, to reevaluate the California law in this field. This duty is more appropriately that of our Supreme Court, which to a great extent has shaped our decisional law in this area.4
The Statute of Limitations Issues
We reach, then, appellant's contention that the trial court erred when it held that her cause of action is barred by the statute of limitations. The trial court applied Code of Civil Procedure section 339, subdivision 1, the two year statute of limitations.5 Appellant asserts, however, that Code of Civil Procedure section 338, subdivision 4, is the applicable statute.6 Furthermore, appellant argues that the cause of action did not accrue until 1958, only one year before the original complaint was filed, and that therefore her cause of action is not barred under any statute.
We agree. We hold for the reasons stated below that the applicable statute of imitations is the three year statute; further, we hold that appellant's cause of action thereunder did not accrue until 1958, and therefore her action is not barred by either the two year or the three year statute of limitations.
We note at the start of this discussion that on the second appeal of this case the court in Davies v. Krasna, supra, 12 Cal.App.3d 1049, 1054, 91 Cal.Rptr. 250 labeled the cause of action in the case at bar as quasi-contractual. This is misleading. The existence of a contract implied in law depends upon whether a defendant has used for his benefit any property belonging to a plaintiff. As an idea, as opposed to its expression, is not property, an action in quasi-contract for its misuse does not lie. (Weitzenkorn v. Lesser, 40 Cal.2d 778, 794–795, 256 P.2d 947; Nimmer, Copyright, § 168.2, p. 724.)
Although we would normally consider this prior holding in this case as the law of the case and, therefore, conclusive on this appeal, we need not if so doing would result in an injustice. (England v. Hospital of Good Samaritan, 14 Cal.2d 791, 795, 97 P.2d 813.) In the instant case it would be unjust to consider the cause of action before us as quasi-contractual. For reasons which we will subsequently develop, this cause of action is in reality an equitable one to impose a constructive trust. (See Civ.Code, § 2224.) As we propose to reverse, it is necessary that we so hold expressly so that prior to retrial the parties are aware that respondent may plead any equitable defenses he deems appropriate and that neither party is entitled to a jury trial. (4 Witkin, Summary of Cal.Law (7th ed. 1960) § 87, p. 2970.)
We turn now to the rationale for our choice of the applicable statute of limitations. Appellant asserts that the gravamen of her cause of action is constructive fraud and that, therefore, the statute which specifically applies to all actions based on fraud, Code of Civil Procedure section 338, subdivision 4, should apply.
Respondent contends otherwise. He argues that appellant's cause of action properly falls within the two year statute, as an action based upon a ‘contract, obligation or liability not founded upon an instrument of writing.’
The statute of limitations to be applied in a case ordinarily is determined by the nature of the right sued upon. It is not ordinarily determined by either the form of the action or by the relief demanded. (Day v. Greene, 59 Cal.2d 404, 411, 29 Cal.Rptr. 785, 380 P.2d 385.) In the instant case, the basis of the action is that respondent violated a confidential relationship with Davies, and having done so, benefited from the violation. Such a violation of a confidential relationship constitutes constructive fraud.7 (Id., see also Civ.Code, § 1573.)8
In cases of constructive fraud, as with actual fraud, the three year statute applies. (Day v. Greene, supra, 59 Cal.2d at p. 411, 29 Cal.Rptr. 785, 380 P.2d 385.) The fact that a breach of an unwritten obligation is involved in the case at bar does not bring the two year statute into effect. As the court in Day pointed out: ‘The fact that a breach of contract is involved is not decisive as to the applicable statute of limitations. . . . [W]e held that section 338, subdivision 4, of the Code of Civil Procedure . . . was applicable where the action was based on a fraudulent breach of a contractual duty. Constructive fraud is the substantive basis of the action . . . in the present case, and where constructive fraud is the gravamen of the action the three-year period . . . applies.’ (Id.) (Emphasis supplied.)
If a fraudulent breach of a contractual duty does not bring into effect the shorter period of limitation, a fortiori, a fraudulent breach of an unwritten obligation will also not bring into effect the shorter period.9 The essence of the cause of action before us being constructive fraud, the three year statute of limitations applies.10
Applying the three year statute we hold that respondent breached his duty to Davies in 1954, when he disclosed Davies' ideas for his own purposes to a substantial portion of the story market.11 Davies was put on inquiry of the breach in 1955, when he learned that respondent was producing a movie allegedly identical in ideas to those in Davies' proposed movie.12 Therefore, ordinarily the period of limitation would run from 1955. (See Code Civ.Proc., § 338, subd. (4).)
We do not believe, however, that under the circumstances of this case appellant's cause of action accrued until 1958. The reason for our belief is best explained as follows. Normally, in any case in which a defendant has committed a constructive fraud, the plaintiff may elect from four possible remedies. First, he may sue in tort for damages. Second, he may waive the tort and sue in quasi-contract. Third, if an action in law would be inadequate, he may sue to obtain an injunction to prevent further tortious action. Fourth, he may sue in equity to impose a constructive trust.
In the instant situation, however, as we have seen, the quasi-contractual remedy was unavailable as respondent had not used for his benefit property belonging to Davies. Nor could Davies then have had a constructive trust imposed as there was no res, or property, to which to attach the trust. (Rest., Restitution (1937) § 160, subd. (i).)
We also do not believe that an action for damages would have been adequate, since Davies would have had great difficulty in proving his damages to a reasonable certainty. As Professor Nimmer has written: ‘Whether a popular song, or a novel or a play will strike the public fancy and prove an all time best seller or alternatively will meet the more common fate of complete oblivion poses a problem that the most knowledgeable experts admit is a matter of pure guesswork.’ (Nimmer, Copyright, supra, § 113, p. 462.)
In the instant case, Davies in 1955 would have had a formidable task in proving more than minimal damages. The imponderables were many. Had respondent not breached the confidence, Davies might have sold his ideas either on a lump sum basis or on a royalty basis. Thus, his damages would have been different depending upon the basis of compensation used. Furthermore, if the sales of ideas had been on a royalty basis, his recovery could have been based on either the gross receipts or the net profits of any future play or movie. (Nimmer, Copyright, supra, id.) Finally, the profits under either formula would have depended upon many box office imponderables, such as the actors involved in the production and the success of its promotion.
As only non-speculative damages may be recovered (Ramsey v. Penry, 53 Cal.App.2d 773, 778, 128 P.2d 399), Davies in all probability would have been forced to accept a monetary recovery far below what appellant's share of the profits respondent allegedly subsequently realized may be if she is able to prove the equitable cause of action for constructive fraud that she has alleged.
The only other remedy available to appellant in 1955, then, was an injunction to prevent respondent from further disclosing the ideas, and to prevent respondent from using the ideas in a movie or play. This remedy, however, would have been, in reality, no remedy at all. By 1955, respondent had already disclosed the ideas to ‘everyone in the picture industry who could conceivably play the parts' in the story. It would have been too late to prevent the harm and it would have amounted to locking the barn after the horse was stolen. Furthermore, although an injunction would have prevented respondent from producing the play and the movie based on Davies' ideas and thereby profiting from them, it would not have made Davies whole for the detriment caused him. Davies was seriously damaged by respondent's disclosures because they greatly diminished, if they did not destroy, the market for Davies' ideas. Any monetary recovery Davies could have then obtained in conjunction with an injunction would have been, for the reasons already stated, probably far below his true damages.
Since for every wrong there should be an adequate remedy (see Civ.Code, § 3523), appellant was entitled to wait until a suitably adequate remedy came into being. In 1958, when respondent's play was presented on Broadway and profits were allegedly obtained thereby, the remedy of constructive trust which appellant has chosen to use,13 became available, since prior to that time respondent was not in possession of a res rightfully belonging, at least in part, to Davies. Consequently, appellant's cause of action commenced running at this time.14
The judgment of the trial court is reversed.
Following a nonjury trial on the sole issue of the statute of limitations, the trial court expressly found as follows:
‘5. During the years 1954 and 1955 the defendant Norman Krasna, for his own purposes, and for the purpose of selling his story to the motion picture industry, disclosed to a number of important actors, actresses, agents, writers and producers in Hollywood, California, the story that is incorporated in his production ‘WHO WAS THAT LADY I SAW YOU WITH.’
6. During the years 1954 and 1955 the area generally designated as Hollywood, California, constituted the major and most important market for the sale of the type of story contained in Valentine Davies' story ‘LOVE MUST GO ON’ and in the defendant Norma Krasna's production ‘WHO WAS THAT LADY I SAW YOU WITH’.
7. During the years 1954 and 1955 the people referred to in Paragraph 5 hereof constituted a very substantial portion of the story market referred to in Paragraph 6.
8. In addition to the people referred to in Paragraph 5 hereof, the defendant Norman Krasna in the year 1954 also disclosed the story contained in his production ‘WHO WAS THAT LADY I SAW YOU WITH’ in New York to Jackie Gleason, a famous motion picture and television star, as well as to a half dozen other persons.
9. The said relating of the story contained in his production ‘WHO WAS THAT LADY I SAW YOU WITH’ in 1954 by the defendant Norman Krasna to the people indicated in Paragraphs 5 and 8 hereof constituted a disclosure of Valentine Davies' story to third persons by defendant Norman Krasna, and constituted a breach of his duty of confidence to Valentine Davies.2
10. The said disclosure of the story contained in Norman Krasna's production ‘WHO WAS THAT LADY I SAW YOU WITH’ in 1954 by defendant Krasna to the market and the persons indicated in Paragraphs 5, 6, 7 and 8 hereof substantially destroyed the marketability of Valentine Davies' story ‘LOVE MUST GO ON’.2
11. The disclosure by defendant Norman Krasna in the year 1954 of the story contained in his production ‘WHO WAS THAT LADY I SAW YOU WITH’ to the persons and the market described in Paragraphs 5, 6, 7 and 8 hereof under the purposes and circumstances set forth therein, constituted not only a disclosure of Valentine Davies' story ‘LOVE MUST GO ON’ to third persons, but also a use thereof by defendant Norman Krasna.2
12. In 1954 and prior to November 11, 1955, defendant Norman Krasna wrote a treatment of the story contained in his production ‘WHO WAS THAT LADY I SAW YOU WITH’ and disclosed such written treatment to Bob Hope, a famous motion picture and television actor, and to others, in an effort to secure its sale for his personal purposes. Such writing and disclosure constituted a disclosure of Valentine Davies' story ‘LOVE MUST GO ON’ to third persons, and constituted personal use thereof by defendant Norman Krasna.2
13. Ned Marin was the Vice President of Famous Artists Agency and represented Valentine Davies in efforts to sell Davies' ‘LOVE MUST GO ON’ in 1954 and 1955, and represented Norman Krasna in efforts to sell Norman Krasna's story contained in his production ‘WHO WAS THAT LADY I SAW YOU WITH’, in 1954 and 1955.
14. Ned Marin died on November 11, 1955.
15. Prior to Ned Marin's death, on November 11, 1955 Valentine Davies was informed of the existence of a written synopsis of Norman Krasna's story contained in his production ‘WHO WAS THAT LADY I SAW YOU WITH’ (then entitled JACK OF SPADES), and was told that it was identical to his story ‘LOVE MUST GO ON’ and, further, Valentine Davies saw in Variety, a trade publication widely read in the Hollywood film industry, that defendant Norman Krasna was making a deal to write, produce and direct a picture based on JACK OF SPADES. Valentine Davies discussed this with his agent, Ned Marin.2
16. Prior to November 11, 1955 Valentine Davies had actual knowledge of the existence and dissemination to third persons, and to the major market for such stories, of the story contained in Norman Krasna's production ‘WHO WAS THAT LADY I SAW YOU WITH’.'
No contention is made that the findings are insufficient or not supported by the evidence and therefore such are binding upon this court. In Schaefer v. California-Western States Life Ins. Co., 262 Cal.App.2d 840 at page 845, 69 Cal.Rptr. 183 at page 186, it was said:
‘Appellant further contends that respondent's action for reformation was barred by the statute of limitations. The cause of action based upon mistake or fraud, however, is deemed to accrue only upon discovery, by the aggrieved party, of the facts constituting such mistake (Code Civ.Proc. § 338(4)) and the time when discovery occurred is a question of fact to be determined by the trier of the facts. (Uchida Investment Co. v. Inagaki, 108 Cal.App.2d 647, 654, 239 P.2d 644.)’
Assuming but not deciding that the trial court erred in concluding that the two year limitation of section 399 subdivision 1, was applicable (see Thompson v. California Brewing Co., 150 Cal.App.2d 469, 476–477, 310 P.2d 436), rather than the three year limit of section 338 subdivision 4, in my opinion the cause of action was barred under either. Section 338 subdivision 4 provides that the cause of action accrues on discovery by the aggrieved party of the facts constituting the fraud. Since Mr. Davies had such knowledge by at least November 11, 1955, the statute ran on his cause of action in November 1958. The action, not being filed until November 19, 1959, was therefore barred and judgment properly entered in favor of defendant.
The majority endeavors to toll the running of the statute until 1958 because prior to then ‘Davies would have had great difficulty in proving his damages to a reasonable certainty’ and ‘would have had a formidable task in proving more than minimal damages.’ No authority is cited in support of this novel rationale. The majority's reliance upon ‘analagous cases' is, in my opinion, misplaced. Ours is not a case of subsequent election ‘to use a different remedy which only becomes available later.’ It is not a case of election of remedies at all. An action for money damages for breach of the relationship of trust and confidence and/or injunctive relief was available to Mr. Davies immediately upon his discovery of the facts giving rise to the breach. The fact that Davies may then have only suffered minimal damages did not authorize a delay in filing until at some future undetermined time it may have been easier to prove damages of a substantial nature. To hold otherwise does violence to the established concept of mitigation of damages expressed in Sackett v. Spindler, 248 Cal.App.2d 220 at 238–239, 56 Cal.Rptr. 435 at 447, as follows:
‘It is well established in California that a party injured by a breach of contract is required to do everything reasonably possible to minimize his own loss and thus reduce the damages for which the other party has become liable. (Valencia v. Shell Oil Co., 23 Cal.2d 840, 844, 147 P.2d 558; Johnson v. Comptoir etc. D'Exportation, 135 Cal.App.2d 683, 689, 288 P.2d 151; Hunter v. Croysdill, 169 Cal.App.2d 307, 318, 337 P.2d 174.) From this rule it follows that a person who has been injured by a breach of contract cannot recover damages for detriment which he could have avoided by reasonable effort and without undue expense. (Hunter v. Croysdill, supra; Murphy v. Kelly, 137 Cal.App.2d 21, 31, 289 P.2d 565; Valencia v. Shell Oil Co., supra.)’
In my opinion, to permit the tolling of the statute of limitations because up until the running of the statute a plaintiff has only sustained nominal damages or that the damages suffered to then are difficult of proof, would have a chaotic effect on litigation in general. To do so would virtually eliminate the safeguards imposed by the statutes of limitations in cases involving unliquidated or speculative damages. The argument would be available in all such actions that the applicable statute is tolled for an indefinite time simply because the nature and extent of the damage was not determined or readily provable within the otherwise applicable statutory period of limitation.
In view of the findings of the trial court and for the other reasons stated I would affirm the judgment.
1. This case has been twice appealed to this court. See Davies v. Krasna, 245 Cal.App.2d 535, 54 Cal.Rptr. 37, and Davies v. Krasna, 12 Cal.App.3d 1049, 91 Cal.Rptr. 250.
2. Certain of the facts stated herein were stipulated to by the parties solely for the purpose of trying the defense of the statute of limitations.
3. We may consider this contention pursuant to Code of Civil Procedure section 906.
4. We note that respondent made this same contention to the court in Davies v. Krasna, supra, 12 Cal.App.3d 1049, 91 Cal.Rptr. 250. The contention was rejected. (Id. at p. 1055, 91 Cal.Rptr. 250.)
5. This statute reads in pertinent part:‘Within two years:‘1. An action upon a contract, obligation or liability not founded upon an instrument of writing. . . .’
6. This statute reads in pertinent part:‘Within three years:‘. . .‘4. An action for relief on the ground of fraud or mistake. The cause of action in such case no to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud or mistake.’Appellant contends, alternatively, that Code of Civil Procedure section 343, the four year statute, applies to the instant case, if the three year statute is inapplicable.The four year statute, however, applies only if no other statute is applicable. As we hold below that the three year statute is applicable, the four year statute cannot apply.
7. Appellant alleges in her amended complaint the existence of a confidential relationship, the wilful and deliberate breach of the relationship, and resulting damage. This constitutes sufficient allegation of constructive fraud. (McFate v. Bank of America of California, 125 Cal.App. 683, 686, 14 P.2d 146; 3 Witkin, Cal.Procedure, supra, § 577, pp. 2215–2216.)
8. The section reads:‘Constructive fraud consists:‘1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, . . . by misleading another to his prejudice. . . .’
9. The major case cited by respondent to support his contention that the shorter period of limitation applies, Thompson v. California Brewing Co., 150 Cal.App.2d 469, 477, 310 P.2d 436, is of doubtful validity on this point.In that case the court dealt only perfunctorily with the statute of limitations issue. Furthermore, the cases the court cited in general support of its holdings (Italiani v. Metro-Goldwyn-Mayer Corp., 45 Cal.App.2d 464, 467, 114 P.2d 370, and Bendien v. Solov, 89 Cal.App.2d 904, 907–908, 202 P.2d 372) were inapposite. They were respectively a plagiarism and an oral contract case; they were not breach of confidence cases.Finally, the court in Thompson appears to have been wrong in concluding that fraud had not been alleged there by the plaintiff. Constructive fraud, as opposed to actual fraud, was there alleged.
10. It is noteworthy that although Witkin states that Code of Civil Procedure section 339, subdivision 1, is exceedingly broad in scope, he explicitly states it is inapplicable to all actions in tort based on fraud. (2 Witkins, Cal.Procedure, supra, § 276, p. 1127, and § 329, pp. 1171–1172.) Under Civil Code section 1571, ‘Fraud is either actual or constructive.’
11. Appellant contends that a cause of action for breach of a confidential relationship occurs upon public use, not disclosure, of the idea. She cites three cases for this proposition: Donahue v. Ziv Television Programs, Inc., 245 Cal.App.2d 593, 54 Cal.Rptr. 130; Donahue v. United Artists Corp., 2 Cal.App.3d 794, 83 Cal.Rptr. 131; and Thompson v. California Brewery Co., 191 Cal.App.2d 506, 12 Cal.Rptr. 783. These cases are inapposite, as each case involved an implied in fact contractual cause of action, in which the defendant had impliedly promised to pay the plaintiff if the ideas were used.When an idea is told in confidence, however, and the cause of action is not based on a contract, the idea-discloser certainly expects the other person not only not to use the idea, but also not to disclose it. (See Davies v. Krasna, supra, 245 Cal.App.2d 535, 549, 54 Cal.Rptr. 37.)As there is substantial evidence to support the trial court's findings that respondent disclosed the ideas for his own purposes to a substantial portion of the story market in 1954 and that such disclosures substantially destroyed the marketability of Davies' ideas, the breach occurred at this time.
12. The fact that Davies was later informed that production of the movie had been cancelled did not relieve him of the duty to investigate further in order to see if respondent had otherwise wrongfully disclosed his ideas.As no representations were made to Davies by respondent or his agents that the confidence was still intact, Davies was not entitled to ignore the evidence at hand of a probable breach of confidence by respondent. (Cf. Knapp v. Knapp, 15 Cal.2d 237, 100 P.2d 759, in which the defendant had made representations which indicated that the relationship was intact.)
13. As appellant prays for recovery of a sum approximating the amount by which respondent allegedly has profited and not for those damages proximately caused by respondent's tortious conduct (Civ.Code, § 3333), it appears that appellant is asking the court to impose a constructive trust.The fact that appellant also asks for exemplary damages is immaterial, as such damages are obtainable in an equitable action to establish a constructive trust. (Rivero v. Thomas, 86 Cal.App.2d 225, 239, 194 P.2d 533.)
14. We note that our reasoning has been used in analogous cases. In various other situations the plaintiff, although entitled to exercise a remedy at an earlier time, may elect to use a different remedy which only becomes available later, and the running of the statutory period on the first remedy will not bar the action seeking the second remedy. (2 Witkin, Cal.Procedure, supra, § 271, p. 1121.)Thus, although a plaintiff may sue a defendant for an anticipatory breach of a contract, the plaintiff may, if he thinks it is beneficial to his interests to do so, wait until the actual breach occurs, even if the breach occurs after the cause of action would have been barred if measured from the time of the anticipatory breach. (See Brewer v. Simpson, 53 Cal.2d 567, 593, 2 Cal.Rptr. 609, 349 P.2d 289 Rest., Contracts, § 322.)Thus, also, although a plaintiff may be entitled to sue for declaratory relief, and thus could prevent the occurrence of some future harm, the plaintiff may wait until the actual breach occurs. (2 Witkin, Cal.Procedure, supra, § 271, p. 1121, and § 360, p. 1199.)In the instant case, analogously, although appellant could have sought an injunction and thus prevented the occurrence of future harm—the production of the play and the movie—she was entitled to await the availability of a remedy which better served her interests.
2. This finding is based, in part, on the stipulation set forth in Footnote 1, supra, and is made without prejudice to the rights of either party if there should be a trial on the merits, in which case this finding shall be without force and effect.
COBEY, Associate Justice.
FORD, P. J., concurs.